{"id":208112,"date":"2011-02-23T00:00:00","date_gmt":"2011-02-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/asha-sehgal-ors-vs-rajinder-kumar-sehgal-on-23-february-2011"},"modified":"2017-09-10T10:52:10","modified_gmt":"2017-09-10T05:22:10","slug":"asha-sehgal-ors-vs-rajinder-kumar-sehgal-on-23-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/asha-sehgal-ors-vs-rajinder-kumar-sehgal-on-23-february-2011","title":{"rendered":"Asha Sehgal & Ors vs Rajinder Kumar Sehgal on 23 February, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
Asha Sehgal & Ors vs Rajinder Kumar Sehgal on 23 February, 2011<\/div>\n
Author: Mool Chand Garg<\/div>\n
*                  IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n+                              FAO.No.374\/2010\n\n%                                                   Reserved on:15.02.2011\n                                                    Decided on: 23.02.2011\n\nASHA SEHGAL & ORS                                  .... Appellant\n                Through: Mr. A P S Ahluwalia, Sr.Advocate with\n                         Mr.S.S.Ahluwalia, Advocate\n\n                                   Versus\n\nRAJINDER KUMAR SEHGAL                           .... Respondent\n                Through: Mr.Maninder Jeet Singh, Advocate\n\nCORAM:\nHON'BLE MR. JUSTICE MOOL CHAND GARG\n\n1.     Whether reporters of Local papers may be                    Yes\n       allowed to see the judgment?\n2.     To be referred to the reporter or not?                      Yes\n3.     Whether the judgment should be reported in                  Yes\n       the Digest?\n\n:      MOOL CHAND GARG, J.\n<\/pre>\n
*\n<\/p>\n
1.     The appellant is aggrieved of the order passed by the Additional
\nDistrict Judge dated 2.5.2009, whereby the ld.Judge has allowed the
\nappeal filed by the respondent against the order passed by the ld.Civil
\nJudge, Delhi dated13.04.2007 in Suit No. 13\/06\/03, whereby the
\napplication filed by the respondent under Order 1 Rule 10 and Order 22
\nRule 3 CPC was dismissed and it was further ordered that in the
\nabsence of any legal heir of the deceased Smt.Agyawati Sehgal, who is
\nthe plaintiff in the suit, the suit also stands abated.\n<\/p>\n
2.     Briefly stating, the facts giving rise to filing of this appeal are that
\nSmt.Agyawati Sehgal had filed a suit for possession and damages for
\nuse and occupation being mesne profits and for permanent injunction
\nagainst the appellant claiming to be the absolute owner in possession of
\nthe entire property bearing No. B-10\/19, Rajouri Garden, New Delhi,
\nhaving inherited the same from her husband late Sh. Maya Ram Sehgal.
\nReliance was placed upon the will and testament dated 15.04.1968
\nexecuted by her husband Maya Ram Sehgal.\n<\/p>\n
FAO No. 374\/2010                                                   Page 1 of 9<\/span><\/p>\n
 3.     Appellants, who are the defendants in the suit, contested the
\nalleged claim of Smt.Agyawati Sehgal. According to them they had been
\nliving in the first floor as co-owners since 1961 because late Sh. Maya
\nRam Sehgal and Sh.Ram Rakha Mal were real brothers and was a joint
\nfamily before partition of the country in 1947. Sh. Ram Rakha Mal died
\nbefore the partition of the country.      Subsequently, the whole family
\nmigrated to Delhi from Lahore.       Late Sh.Maya Ram Sehgal was the
\nkarta of the family which consisted of Sh.Maya Ram Sehgal,
\nSh.TirathRam, son of late Sh.Ram Rakha Mal and his two sons
\nSh.Surinder Kumar Sehgal and Sh.Rajinder Kumar Sehgal at Delhi.
\nThe family occupies house No. 9048 and 9049 in Gali No.1, Multani
\nDhanda, Paharganj, New Delhi.        Then the family purchased the plot
\nbearing No. B-10.19, Rajouri Garden, New Delhi in the name of
\nSh.Maya Ram Sehgal and a two storeyed house was built, the
\nconstruction of which was completed in 1961. Family of both Sh.Maya
\nRam Sehgal and Sh.Tirath Ram Sehgal including Sh.Surinder Kumar
\nSehgal started living in the new house in Rajouri Garden in the year
\n1961. The late plaintiff, Smt.Agywati Sehgal and her husband Sh.Maya
\nRam Sehgal had no issue, but treated Sh.Surinder Kumar Sehgal as
\ntheir son. Smt.Agyawati Sehgal had arranged the marriage of appellant
\nno.1 with Sh.Surinder Kumar Sehgal in the same demised house and
\ntherefore, they have continued to live since 1961 on the first floor. The
\nallegations of late plaintiff in the plaint were specifically denied that the
\nappellants and their late father Sh.Surinder Kumar Sehgal were living
\non licence basis in the premises. It is also the case of the appellants
\nthat Sh.Maya Ram Sehgal, before his death on 11.10.1968 had left his
\nfinal will dated 15.4.1968 under which he had bequeathed the demised
\nhouse in favour of both Smt.Agyawati Sehgal and Sh.Surinder Kumar
\nSehgal. Hence under the said will they became co-owners.\n<\/p>\n
4.     Unfortunately, Smt.Agyawati Sehgal died on 22.02.2011.                  The
\npresent respondent filed an application alleging himself as the legal
\nrepresentative under the will left by Smt.Agyawati Sehgal and applied
\nfor his substitution under Order XXII Rule 3 CPC r\/w Order X Rule 1
\nCPC.\n<\/p>\n
FAO No. 374\/2010                                                 Page 2 of 9<\/span><\/p>\n
 5.     The learned Civil Judge held a summary enquiry by recording
\nevidence within the meaning of Order XXII Rule 5 CPC after framing an
\nissue and returned a finding that neither the respondent was the legal
\nrepresentative nor he had any right to sue against the appellants and
\nhence the application was rejected vide order dated 13.04.2007
\ndeclaring the suit to have abated by making a passing reference.\n<\/p>\n
6.     The respondent then preferred an appeal against the aforesaid
\norder of the ld. Civil Judge. The appellants took a preliminary objection
\nas to the maintainability of the appeal. It was their submission that no
\nappeal was maintainable under law against the order of rejection of
\napplication dated 13.04.2007 filed under Order XXII Rule 3 and 5 CPC.
\nThe appeal was also belated.        However, the delay was condoned and
\nafter hearing arguments the ld. ADJ has allowed the appeal and
\nremanded the matter before the ld. Civil Judge for disposal of the suit
\non merits vide order dated 02.05.2009.\n<\/p>\n
7.     It is this order which has been appealed against by the appellant,
\nwho contends that in the absence of any provisions available in CPC
\nentitling the respondent to file an appeal against the order of the ld.
\nCivil Judge, the ld. ADJ had no jurisdiction to entertain the appeal filed
\nby the respondent and thereby, remanding the matter to the ld.Civil
\nJudge as has been done by the impugned order.\n<\/p>\n
8.     According to the appellant no appeal lies against an order
\ndismissing an application under Order 1 Rule 10 and Order 22 Rule 3
\nCPC.     It is submitted that such an order is not a decree within the
\nmeaning of Section 2(2) CPC and, therefore, no appeal lies under
\nSection 96 r\/w Order XLI Rule 1 CPC. It is also submitted that such an
\norder does not adjudicate upon any right of the parties on merits and
\ntherefore, Section 11 CPC is not attracted. It is further submitted that
\nthere is a specific provision under Order XXII Rule 9(1) CPC that no
\nfresh suit could be brought on the same cause of action.        The only
\ncourse open to a party is to seek the remedy for setting aside
\nabatement.         Of course, an order refusing to set aside abatement is
\nappealable under Order XLIII Rule 1(k) CPC.          Even such an order
\npassed cannot be styled as decree within the meaning of Section 2(2)
\nCPC.\n<\/p>\n
FAO No. 374\/2010                                              Page 3 of 9<\/span><\/p>\n
 9.     The appellant has relied upon the following judgments:-\n<\/p>\n
           (i) Madan Naik (dead by LRs) & Ors. Vs. Hansubala
\n           Devi & Ors., AIR 1983 SC 676;\n<\/p><\/blockquote>\n
           (ii) Amakka  Shiva   Narandekar   Vs.  Dedubhau
\n           Narandekar, (2005) 5 Bom CR 350: 2005 (1) Mh.L..J.
\n           1129;\n<\/p><\/blockquote>\n
           (iii) Anupama Vs. Bhagwan Dass & Ors., 111(2004) DLT
\n           143;\n<\/p><\/blockquote>\n
           (iv) Venkatakrishna Reddi & Ors. Vs. Krishna Reddi,
\n           AIR 1926 Madras 586;\n<\/p><\/blockquote>\n
           (v) Gautam Bhawan Nirman Sahkari Samiti, Ltd.,
\n           Jodhpur Vs. Ramnik Kumari & Ors., AIR 2005
\n           Rajasthan 161;\n<\/p><\/blockquote>\n
           (vi) Anang Pal Vs. Pearey Lal & Ors., AIR 1986 Punjab
\n           and Haryana 87;\n<\/p><\/blockquote>\n
           (vii)   Ram Charan Das Vs. Hira Nand, AIR (32)
\n           1945 Lahore 296;\n<\/p><\/blockquote>\n
           (viii)  Babulal Vs. Jugalkishor & Ors., AIR 1954
\n           Nagpur 254;\n<\/p><\/blockquote>\n
           (ix) K.Venkata Seshamma Vs. K Guneswara Rao, 1924
\n           Madras 622;\n<\/p><\/blockquote>\n
           (x) Baij Nath & Anr. Vs. Munna Lal, AIR 1963
\n           Allahabad 389;\n<\/p><\/blockquote>\n
           (xi) Srinivasa Mudaliar Vs. Abraham Pillai, AIR (37)
\n           1950 Madras 824;\n<\/p><\/blockquote>\n
10.    It is the submissions of the appellant that the respondent even
\notherwise had no right to file an appeal without the leave of the court.
\nMore so, when the order passed on the application under Order XXII
\nRule 3 CPC dismissing the same was neither a decree nor a judgment.\n<\/p>\n
11.    It is submitted that in view of the aforesaid, the first appellate
\ncourt had no jurisdiction to entertain the appeal filed by the respondent
\nagainst the order of the ld. Civil Judge and, therefore, any direction
\ngiven by the first appellant court is not sustainable in law. Reference
\nhas also been made to the following judgments:-\n<\/p>\n
           (i) Banarsi & Ors. Vs. Ram Phal, AIR 2003 SC 1989;\n<\/p><\/blockquote>\n
FAO No. 374\/2010                                                Page 4 of 9<\/span><\/p>\n
            (ii) Shivaraya Vs. Siddamma & Anr., AIR 1963 Mysore
\n           127;\n<\/p><\/blockquote>\n
           (iii) State of Kerala Vs. Madhavkurup Ramchandran
\n           Pillai, AIR 1999 Kerala 359; and,<\/p>\n<\/blockquote>\n
           (iv) (Gopisetti)Veeraswami & Ors. Vs. Sagiraju
\n           Seetharama Kantayya, AIR 1926 Madras 1089.\n<\/p><\/blockquote>\n
12.    It is also submitted that once an objection was taken by the
\nappellant with regard to the maintainability of the appeal, the appellate
\ncourt could not have assumed jurisdiction to hear an appeal without
\ndeciding the preliminary objection.\n<\/p>\n
13.    On the other hand, the learned counsel appearing for the
\nrespondent has submitted that in addition to dismissing an application
\nunder Order I Rule 10 CPC and Order XXII Rule 3 CPC, the ld. Civil
\nJudge has simultaneously dismissed the suit of the appellant as
\nabated. It is thus submitted that the order comes within the definition
\nof a decree as per the provisions of Section 2(2) CPC, which defines the
\ndecree as,<\/p>\n
           (2)  “decree” means the formal expression of an
\n           adjudication which, so far as regards the Court
\n           expressing it, conclusively determines the rights of the
\n           parties with regard to all or any of the matters in
\n           controversy in the suit and may be either preliminary
\n           or final. It shall be deemed to include the rejection of a
\n           plaint and the determination of any question within
\n           [3]* * * section 144, but shall not include-\n<\/p>\n
           (a) any adjudication from which an appeal lies as an
\n           appeal from an order, or<\/p>\n
           (b) any order of dismissal for default.\n<\/p>\n
           Explanation-A decree is preliminary when further
\n           proceedings have to be taken before the suit can be
\n           completely disposed of. It is final when such
\n           adjudication completely disposes of the suit, it may be
\n           partly preliminary and partly final;\n<\/p>\n
14.    It is thus submitted that in view of the observations made by the
\nld. Civil Judge while disposing of the entire suit, the decree passed by
\nthe ld. Civil Judge became appealable as a regular appeal under Section
\n96 CPC.       Reference has been made to Suppu Nayakan Vs. Perumal
\nFAO No. 374\/2010                                                 Page 5 of 9<\/span>
\n Chetty, AIR 1917 Madras 285, Silla Jagannadha Prasad Vs. Silla Lalitha
\nKumari, AIR 1989 AP 8 and 1978 WLN(UC) 52(53).\n<\/p>\n
15.    To appreciate the controversies between the parties, it would be
\nappropriate to take note of the impugned order passed by the ld. Civil
\nJudge in this case on 13.04.2007 as also the judgments relied upon by
\nboth sides which clarifies the legal position.\n<\/p>\n
16.    The appellant had relied upon a judgment of the Apex Court as
\ndelivered in the case of Madan Naik (dead by LRs) & Ors. Vs. Hansubala
\nDevi & Ors. (supra), wherein while dealing with the definition of decree
\nas provided for under Section 2(2) CPC and the right to appeal, if any,
\nin case of dismissal of application for brining on record the legal heirs,
\nhas been discussed. The relevant observations made by the Apex Court
\nare reproduced hereunder:-\n<\/p>\n
           5. Order 22, Rule 11 of the CPC read with Order 22
\n           Rule 4 makes it obligatory to seek substitution of the
\n           heirs and legal representatives of deceased respondent
\n           if the right to sue survives. Such substitution has to
\n           be sought within the time prescribed by law of
\n           limitation. If no such substitution is sought, the
\n           appeal will abate. Sub-rule (2) Rule 9 of Order 22
\n           enables the party who is under an obligation to seek
\n           substitution to apply for an order to set aside the
\n           abatement and if it is proved that he was prevented by
\n           any sufficient cause from continuing the suit which
\n           would include an appeal, the Court shall set aside the
\n           abatement. Now where an application for setting aside
\n           an abatement is made, but the Court having not been
\n           satisfied that the party seeking setting aside of
\n           abatement was prevented by sufficient cause from
\n           continuing the appeal, the Court may decline to set
\n           aside the abatement. Then the net result would be that
\n           the appeal would stand disposed of as having abated.
\n           It may be mentioned that no specific order for
\n           abatement of a proceeding under one or the other
\n           provision of Order 22 is envisaged, the abatement
\n           takes place on its own force by passage of time. In fact,
\n           a specific order is necessary under Order 22 Rule 9, C.
\n           P. C. for setting aside the abatement.\n<\/p><\/blockquote>\n
           8. Section 2 Sub-section (2) of the CPC defines ‘decree’
\n           to mean “the formal expression of an adjudication
\n           which, so far as regards the Court expressing it,
\n           conclusively determines the rights of the parties with
\n           regard to allow any of the matters in controversy in the
\n           suit and may be either preliminary or final. It shall be
\n           deemed to include the rejection of a plaint and the
\nFAO No. 374\/2010                                                Page 6 of 9<\/span>
\n            determination of any question within Section 144 but
\n           shall not include any adjudication from which an
\n           appeal lies as an appeal from an order.” When an
\n           appeal abates for want of substitution as envisaged by
\n           Sub-rule 1 of Rule 9 of Order 22, it precludes a fresh
\n           suit being brought on the same cause of action. It is a
\n           specific provision. If abatement implied adjudication
\n           on merits, Section 11 of C.P.C. would be attracted.
\n           Abatement of an appeal does not imply adjudication
\n           on merits and hence a specific provision had to be
\n           made in Order 22 Rule 9(1) that no fresh suit could be
\n           brought on the same cause of action. Therefore when
\n           the appeal abated there was no decree, disposing of
\n           the first appeal, only course open is to move the court
\n           for setting aside abatement. An order under Order 22
\n           Rule 9(2) C.P.C. refusing to set aside abatement is
\n           specifically appealable under Order 43 Rule 1(k). Such
\n           an adjudication if it can be so styled would not be a
\n           decree as defined in Section 2(2) C.P.C. Section 100
\n           provides for second appeal to the High Court from
\n           every decree passed in appeal by any Court
\n           subordinate to the High Court on the grounds therein
\n           set out. What is worthy of notice is that a second
\n           appeal lies against a decree passed in appeal. An order
\n           under Order 22 Rule 9 appealable as an order would
\n           not be a decree and therefore, no second appeal would
\n           lie against that order. Such an appeal is liable to be
\n           rejected as incompetent.\n<\/p><\/blockquote>\n
17.    On the strength of the aforesaid judgment, it is submitted that in
\nthis matter the order of the ld. Civil Judge in having dismissed the
\napplication under Order XXII Rule 3 CPC r\/w Order I Rule 10 CPC and
\nin having refused to allow the respondent to be impleaded as party to
\nthe suit and thereafter, making a passing reference that the suit stands
\nabated not a decree which becomes appealable as it was not an order
\nrefusing to set aside the abatement under Order XL Rule 1(k) CPC.\n<\/p>\n
18.    In the case of Amakka Shiva Narandekar (supra) in a similar
\nsituation, the Bombay High Court has observed that appeal is
\nmaintainable only against an order refusing to set aside the abatement
\nor dismissal of suit. Since against an order deciding that ‘J’ was not
\nlegal representative of deceased and therefore the suit was abated no
\napplication has been moved for setting aside the abatement, Order XXII
\nRule 9 would not come into play. As there is no application for setting
\naside abatement, there cannot be any refusal to do so. Order passed<\/p>\n
FAO No. 374\/2010                                              Page 7 of 9<\/span>
\n would not be appealable under Order XLIII Rule 1(k) CPC. The relevant
\nparagraph is reproduced hereunder:-\n<\/p>\n
           6. Sub-rule (2), therefore, stipulates that a person who
\n           claims to be the legal representative of the deceased
\n           plaintiff or assignee, may apply to the Court to set
\n           aside the abatement or dismissal. The Court may set
\n           aside the abatement and dismissal of the suit on such
\n           terms as it thinks fit if it is found that the party was
\n           prevented by sufficient cause from continuing with the
\n           suit. Under Order 43 Rule 1(k), it is only if an order
\n           under Rule 9 of Order 22, refusing to set aside the
\n           abatement or dismissal of the suit is passed that an
\n           appeal is maintainable. A perusal of the impugned
\n           order indicates that there is no application made for
\n           setting aside the abatement of the suit. Instead, what
\n           has been done after Amakka expired on 19.6.1984, the
\n           appellant-Jaipal filed an application within time before
\n           the appellate Court for substituting his name as the
\n           legal representative of Amakka. He claimed his status
\n           on the basis of a will left behind by Amakka on
\n           20.8.1979. The trial Court had referred the issue as to
\n           the validity of the will and for recording the findings as
\n           to who was the legal representative of Amakka. The
\n           trial Court had by a detailed order, held that Jaipal
\n           was not the legal representative. These findings of the
\n           trial Court arrived at on a reference made to it under
\n           Order 22 Rule 5 were accepted by the appellate Court
\n           who declared that Amakka could not be represented
\n           by Jaipal. It was also held that the appeal had abated
\n           as the appellant had died.\n<\/p><\/blockquote>\n
19.    A full Bench of Madras High Court in the case of Venkatakrishna
\nReddi (supra) has taken a similar view that no appeal lies against an
\norder refusing the application of a person to be brought on record as
\nthe legal representative of a deceased plaintiff on the objection of the
\ndefendant even when there is no rival claimant for being brought on the
\nrecord as his legal representative.      Same is the view taken by the
\nRajasthan High Court in the case of Gautam Bhawan Nirman Sahkari
\nSamiti Ltd. (supra).\n<\/p>\n
20.    In the case of Ram Charan Das (supra) a Full Bench of Lahore
\nHigh Court has observed that the decision of the trial judge as to the
\nalleged legal representative not having been proved to be the legal
\nrepresentative of the deceased party is not open to appeal. From the
\nmere observation by the Judge in a casual manner, that the right to sue
\nFAO No. 374\/2010                                                 Page 8 of 9<\/span>
\n did not survive after the death of the deceased party, the Judge should
\nnot be deemed to have passed an order abating the suit from which an
\nappeal may be maintained as an appeal from a decree.                     It having
\nalready been decided by the Judge that the alleged legal representative
\nwas not the legal representative of the deceased he could not, so long as
\nthe order stood, claim a right to appeal form the order of abatement as
\na legal representative of the original party.\n<\/p>\n
21.     The other judgments relied upon by the appellant also supports
\nthe contention that when an application under Order XXII Rule 3 CPC
\nis    dismissed    declining   the   applicant   to   be   taken    as    a   legal
\nrepresentative and the suit stands abated in the absence of any other
\nperson to continue with the suit, an appeal would not lie against the
\norder dismissing an application under Order XXII Rule 3 CPC.\n<\/p>\n
22.     The judgments cited on behalf of the respondent i.e. Suppu
\nNayakan Vs. Perumal Chetty (supra), Silla Jagannadha Prasad Vs. Silla
\nLalitha    Kumari    (supra)   and    1978   WLN(UC)       52(53)   (supra)        are
\ndistinguishable in the light of the judgments delivered by the Apex
\nCourt and other courts as quoted above. Hence, are of no help to the
\ncase of the respondent.\n<\/p>\n
23.     In view of the aforesaid legal position, it is apparent that no
\nappeal was maintainable against the order of the ld. Civil Judge. The
\nentertainment of the appeal by the ld. ADJ against the order of the ld.
\nCivil Judge was not in accordance with law. Thus, remanding back the
\nmatter to the ld. Civil Judge by the ld. ADJ cannot be sustained. The
\nimpugned order is therefore set aside. Accordingly, the appeal is allowed
\nwith no orders as to costs. It is made clear that nothing stated herein
\nwould prevent the respondent to take recourse to other legal remedies
\nas may be available to him and nothing stated herein would cast any
\naspersions on the merits of the case. TCR be sent back forthwith along
\nwith a copy of this order
\nCM No. 18329\/2010
\n        Interim orders are made absolute.\n<\/p>\n
        Application stands disposed of.\n<\/p>\n
                                                      MOOL CHAND GARG,J
\nFEBRUARY 23, 2010
\n‘dc’
\nFAO No. 374\/2010                                                     Page 9 of 9<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Asha Sehgal & Ors vs Rajinder Kumar Sehgal on 23 February, 2011 Author: Mool Chand Garg * IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO.No.374\/2010 % Reserved on:15.02.2011 Decided on: 23.02.2011 ASHA SEHGAL & ORS …. Appellant Through: Mr. A P S Ahluwalia, Sr.Advocate with Mr.S.S.Ahluwalia, Advocate Versus RAJINDER […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-208112","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nAsha Sehgal & Ors vs Rajinder Kumar Sehgal on 23 February, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/asha-sehgal-ors-vs-rajinder-kumar-sehgal-on-23-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Asha Sehgal & Ors vs Rajinder Kumar Sehgal on 23 February, 2011 - 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