The reliefs claimed in the present suit by Late Shri S.K. Beri were specifically against Deepak Beri and his family members. Deepak Beri has contested the suit by filing a written statement controverting the averments made in the plaint and seeking dismissal of the present suit. Where the
interest of the legal representative is in conflict with the interest of the deceased plaintiff and he was a party in the suit as a defendant, he cannot be permitted to represent the estate of the deceased plaintiff. Therefore, in my considered view, the ‘right to sue’ in the present case cannot accrue in favour of Deepak Beri. The ‘right to sue’ can only accrue in favour of Atul Beri, who was neither a party in the suit, nor had any conflict with the interest of Late Shri S.K. Beri.{Para 15}
IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 162/2018
S.K. BERI Vs DEEPAK BERI & ORS.
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
AMIT BANSAL, J.
Dated : 9th February, 2023
Citation: 2023/DHC/000991
I.A. 18915/2022 (delay 183 days in filing Review Petition)
1. For the reasons stated in the application, the same is allowed and the
delay of 183 days in filing the review petition is condoned.
I.A 2496/2023 (Condonation of delay of 54 days in filing reply to Review
pet.)
2. For the reasons stated in the application, the same is allowed and the
delay of 54 days in filing reply to the review petition is condoned.
REVIEW PET. 303/2022
3. The present review petition has been filed on behalf of the review
petitioner, Atul Beri, seeking review of the order dated 6th April, 2022, wherein this Court impleaded both Atul Beri and Deepak Beri as the legal representatives of the deceased plaintiff, Late Shri S.K Beri. Both Atul Beri and Deepak Beri are the sons of Late Shri S.K. Beri.
4. Notice in the present review petition was issued on 18th November, 2022. Reply has been filed on behalf of the defendant no.1, Deepak Beri.
5. The present suit was filed on behalf of Late Shri S.K. Beri against one of his sons, Deepak Beri, and his wife and children seeking the following reliefs:
a) Pass a Decree of Possession in favour of the Plaintiff and against the Defendants with regard the entire Basement and entire Second Floor consisting of Two Bed Rooms with attached toilets and Dressing Rooms, Family Lounge, Guest Toilet, Drawing Cum Dining Room, One Kitchen and the area above the entire second floor including one Servant quarter with Kitchen and Toilet constructed thereon, with right to construct and own any areas/floors on the said terrace and subsequent terraces thereupon and there above, upto the limits of the sky, and car parking space for one car along with proportionate undivided, indivisible and impartible ownership rights in the plot of land measuring 400 sq. yards, bearing No.E-539, Greater Kailash Part-II, New Delhi-110048.
b) Pass a Decree of Permanent Injunction against the Defendants and in favour of the Plaintiff, permanently restraining the Defendants, their agents, representatives, legal heirs and any other persons claiming a right through them, from transferring, selling, alienating and creating any third party rights with respect to the entire Basement and entire Second Floor consisting of Two Bed Rooms with attached toilets and Dressing Rooms, Family Lounge, Guest Toilet, Drawing Cum Dining Room, One Kitchen and the area above the entire second floor including one Servant quarter with Kitchen and Toilet constructed thereon, with right to construct and own any
areas/floors on the said terrace and subsequent terraces thereupon and there above, upto the limits of the sky, and car parking space for one car along with proportionate undivided, indivisible and impartible ownership rights in the plot of land measuring 400 sq. yards, bearing No. E-539, Greater Kailash Part-II, New Delhi-110048.
c) Pass a Decree of Mandatory Injunction against the Defendants and in favour of the Plaintiff, directing the Defendants to not disturb the peaceful possession of the Plaintiff of the entire Basement and entire Second Floor consisting of Two Bed Rooms with attached toilets and Dressing Rooms, Family Lounge, Guest Toilet, Drawing Cum Dining Room, One Kitchen and the area above the entire second floor including one Servant quarter with Kitchen and Toilet constructed thereon, with right to construct and own any areas/floors on the said terrace and subsequent terraces thereupon and there above, upto the limits of the sky, and car parking space for one car along with proportionate undivided, indivisible and impartible ownership rights in the plot of land measuring 400 sq. yards, bearing No. E-539, Greater Kailash Part-II, New Delhi-110048.”
6. Deepak Beri filed a written statement controverting the averments made in the plaint and seeking dismissal of the suit.
7. During the pendency of the present suit, Shri S.K. Beri expired on 20th February, 2021. Thereafter, an application under Order XXII Rule 3(1) of the Code of Civil Procedure, 1908 (CPC) was filed on behalf of Atul Beri seeking his substitution as the legal representative of Late Shri S.K. Beri in the present suit. This Court vide order dated 6th April, 2022 impleaded both Atul Beri and Deepak Beri, being the two sons of Late Shri S.K. Beri, as the legal representatives of Late Shri S.K. Beri. Atul Beri seeks review of the aforesaid order. Admittedly, Late Shri S.K. Beri did not have any other legal heirs.
8. Senior counsel appearing for Atul Beri submits that Deepak Beri cannot be impleaded as the legal representative of Late Shri S.K. Beri, as the ‘right to sue’ would survive only in Atul Beri. Reliance in this regard is placed on the judgment of the Karnataka High Court in Chandralekha v. Sujatha and Others, ILR 2010 KAR 2564.
9. On the other hand, the senior counsel appearing on behalf of Deepak Beri submits that Deepak Beri has the right to be impleaded as the legal representative of Late Shri S.K. Beri, as it is his case that Late Shri S.K. Beri had expired intestate. He further submits that he has filed a suit being CS(OS) 183/2022, challenging the alleged will executed by Late Shri S.K. Beri.
10. I have heard the counsels for the parties.
11. At the outset, a reference may be made to Section 2(11) of the CPC, which is set out below:
“2. Definitions (11) “legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;”
12. Now, a reference may also be made to Order XXII Rule 5 of the CPC, which is set out below:
OXXII – Death, Marriage And Insolvency Or Parties 5. Determination of question as to legal representative - Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court.
Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question.
13. In Jaladi Saguna v. Satya Sai Central Trust¸ (2008) 8 SCC 521, the Supreme Court has observed that when an application for impleadment is filed, the Court shall consider and decide whether the legal representative of the deceased plaintiff should be brought on record before proceeding with the case on merits. Further, the determination as to who is the legal representative under Order XXII Rule 5 of the CPC would only be for the limited purpose of representation of the estate of the deceased for the adjudication of that case and the same would not confer on the said legal representative any right to the property, which is the subject matter of the suit vis-à-vis other rival claimants to the estate of the deceased. Inter se dispute between the rival claimants has to be adjudicated by way of independent legal proceedings.
14. In Chandralekha (supra), Karnataka High Court has observed that the ‘right to sue’ in relation to a legal representative has to be determined with reference to the claim made by the deceased plaintiff. Only when there is a ‘right to sue’ in favour of a legal representative, he would have the right to continue the suit filed by the deceased plaintiff as a legal representative.
15. The reliefs claimed in the present suit by Late Shri S.K. Beri were specifically against Deepak Beri and his family members. Deepak Beri has contested the suit by filing a written statement controverting the averments made in the plaint and seeking dismissal of the present suit. Where the
interest of the legal representative is in conflict with the interest of the deceased plaintiff and he was a party in the suit as a defendant, he cannot be permitted to represent the estate of the deceased plaintiff. Therefore, in my considered view, the ‘right to sue’ in the present case cannot accrue in favour of Deepak Beri. The ‘right to sue’ can only accrue in favour of Atul Beri, who was neither a party in the suit, nor had any conflict with the interest of Late Shri S.K. Beri.
16. Accordingly, the order dated 6th April, 2022 is reviewed and Atul Beri is impleaded as the sole legal representative of Late Shri S.K. Beri to represent his estate in the present suit. This will be without prejudice to the rights and contentions of Deepak Beri in the present suit as well as in CS(OS) 183/2022.
17. The review petition stands disposed of accordingly.
AMIT BANSAL, J. FEBRUARY 09, 2023
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