(Order XXII Rule 3 CPC) Delay In Filing Application For Substitution Of Legal Heirs Must Be Sufficiently Explained: Delhi High Court
Case: Dlf Homes Rajapura Pvt. Ltd V. Late O.P. Mehta & Anr.
Coram: Justice C. Hari Shankar
Case No.: CM(M) 574/2022
Court Observation: “In the case of the NCDRC, therefore, a complaint, in representative capacity, may be filed with the NCDRC, only with the permission of the NCDRC. Till such time as permission is granted, therefore, the complaint cannot be treated as having been filed, even if it has, technically speaking, been tendered in the Registry. Undisputedly, on the date when the impugned order came to have been passed by the learned NCDRC, no permission had been granted by it, under Section 12(1)(c) of the Act, for filing a complaint in a representative capacity…On the date when the impugned order came to be passed, it could not be said that the consumer complaint of the respondents had been brought in a representative capacity so as to exclude the application of Rules 3 and 4 of Order XXII. I, therefore, am of the opinion that the contention that Rules 3 and 4 of Order XXII of the CPC did not apply in the present case, which was governed exclusively by Order XXII Rule 10, is bereft of substance. It is accordingly rejected.”
“A simple prayer for bringing legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside the abatement…so also a prayer for setting aside abatement as regards one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety.”
“In dealing with applications under Order XXII Rule 3 for substitution of legal heirs, or under Order XXII Rule 9 for setting aside abatement of proceedings, the Court has to strike a balance. The delay, any which way, has to be satisfactory explained. In assessing the sufficiency of the explanation as cause for the delay, however, the Court has to be liberal and expansive in its approach, and to proceed ex debito justitiae. The fact that, by abatement of the proceedings, a legal right has ensured in favour of the opposite party, can be a delimiting factor only to a restricted extent, and no more. It cannot be said that the averments contained in IA 19644/2019 sufficiently explained the delay of 607 days in preferring the application. They do not even meet the threshold requirement which the application seeking condonation of delay was required to meet. Howsoever expansive a view the Court may adopt, and with greatest respect to the learned NCDRC which has held otherwise, I am unable to convince myself that, even applying the most liberal of standards, the assertions in the IA can be said to have sufficiently explained the delay of 607 days.”
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Keywords
Delay In Filing Application, Delay In Filing Application For Substitution Of Legal Heirs
