Sheri Farid & Ors v. Khilar Singh

RAJIV SAHAI ENDLAW, J. NOVEMBER 01, 2017 'mw/gsr'..

(Corrected and released on 28th November, 2017).

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 1st November, 2017 + C.R.P. 236/2017 SHERI FARID & ORS ..... Petitioners Through: Mr. Rajiv Kumar Ghawana with Ms. Akshita Chhatwal & Mr. Anirudh Ahuja, Advocates. Versus KHILAR SINGH ..... Respondent Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW CM No. 39349/2017 (for exemption) 1. Allowed, subject to just exceptions. 2. The application is disposed of. C.R.P. No. 236/2017 & CM No. 39348/2017 (for stay) 3. This Revision Petition under Section 115 of the CPC impugns the order (dated 19th September, 2017 in Civil Suit no. 8074/16 of the court of Additional District Judge-04, Saket Courts, New Delhi) allowing the applications (i) for condoning the delay in applying for setting aside of the abatement of the suit qua defendant no.1(b); (ii) for setting aside the abatement; and, (iii) for condoning the delay on the part of the respondent/plaintiff in applying for substitution of the legal representatives of the defendant No.1(b), all subject to payment of cost of Rs.20,000/- to the petitioners/defendants. 4. Counsel for the petitioners/defendants, on enquiry states that costs have not been accepted. Counsel for the petitioner/defendant has been heard. 5. The respondent/plaintiff instituted the suit, from which this petition arises, for recovery of Rs.30 lacs from one Sh. Islam, pleading that the said amount of Rs.30 lacs was paid by the respondent/plaintiff to the said Sh. Islam towards advance for purchase of an immovable property and which purchase had not fructified. The defendant Sh. Islam contested the suit. The defendant Sh. Islam died during the pendency of the suit and his eight legal heirs being the petitioners herein were substituted in his place. One of the aforesaid legal heirs of the original defendant, namely Sh. Habib, who was defendant no.1 (b) in the suit, also died on 25th April, 2014 and intimation of his death was given during the hearing in the suit on 6th May, 2014. Counsel for the defendants in the suit, on the same day, also undertook to furnish to the counsel for the respondent/plaintiff the details of the legal heirs of the deceased defendant no.1(b) Sh. Habib. 6. It is not in dispute that the counsel for the petitioner/defendant on 27th May, 2014 furnished to the counsel for the respondent/plaintiff, when he was sitting in a court in some other proceedings, the particulars of the legal heirs of the deceased defendant no.1(b) Sh. Habib. 7. Counsel for the respondent/plaintiff however filed the application for substitution of the legal heirs of the deceased defendant no.1(b) Sh. Habib only on 10th October, 2014, while 90 days from the date of death expired on 24th July, 2014. No application for setting aside of the abatement was filed along therewith; however, subsequently the application for setting aside of the abatement was filed on 12th May, 2015. 8. Learned Additional District Judge in the aforesaid facts, has exercised the discretion vested in him, by condoning the delay in applying for setting aside of the abatement as well as in applying for substitution of legal representatives of defendant no.1 (b) Sh. Habib, believing the explanation of the counsel for the respondent/plaintiff that the particulars of the legal heirs of the deceased defendant no.1(b) Sh. Habib handed over to him while he was sitting in court in some other proceedings were misplaced by his court clerk. 9. It is the contention of the counsel for the petitioner/defendant that the learned Additional District Judge has wrongly exercised the discretion in condoning the delay in favour of the respondent/plaintiff and in this regard relies upon Union of India vs. Ram Charan AIR 1964 SC 215 and Balwant Singh (dead) vs. Jagdish Singh 2010 8 SCC 685. 10. As far as the first of the aforesaid judgments is concerned, the same is of an era prior to the amendment of the CPC w.e.f. 1976 and whereby Rule 10A has been inserted in Order XXII, requiring the counsel for the dec