Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Date of decision: 13 JANUARY, 2026
IN THE MATTER OF:
+ CS(OS) 49/2019
MRS. KRISHNA CHAWLA .....Plaintiff
Through: Mr. Sacchin Puri, Sr. Adv., Mr.Puneet
Sharma, Mr. Sonu Kumar, Mr.
Utkarsh Soni, Mr. Sahil Sharma,Mr.
Harshit Sharma and Mr. Priyanshu,
Advs.
versus
SHRI ANIL CHAWLA AND ORS. .....Defendants
Through: Mr. Samrat Nigam, Senior Advocate,
Mr. Kunal Mittal and Mr. Sachin
Aggarwal, Rishika Advs. for
Defendant Nos.2(i), (ii) & (iii).
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
O.A. 50/2025
1. The present Chamber Appeal under Chapter II Rule 5 of the Delhi
High Court (Original Side) Rules, 2018 has been filed on behalf of
Defendant Nos.2(i), (ii) & (iii) against the Order dated 05.03.2025 passed by
the Ld. Joint Registrar (Judicial) allowing the application being I.A. No.
12/2023 filed by Defendant Nos.3 & 5 under Order XXII Rule 3 of the Code
of Civil Procedure, 1908 for transposing themselves as the LRs of Plaintiff.
2. Shorn of unnecessary details, the facts of the case indicate that the
present Suit has been filed by the Plaintiff for partition and injunction in
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Signed By:HARIOM
SINGH KIRMOLIYA
Signing Date:16.01.2026
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CS(OS) 49/2019 Page 1 of 9
respect of property bearing No.A1/11, Krishna Nagar, Delhi and Properties
bearing No.591-598, Jheel Khuranja, Delhi-110051. The Plaintiff is the
mother of Defendant Nos.1, 3, 4, 5 & 6. Defendant Nos.2(i), (ii) & (iii) are
daughter-in-law and children of deceased son of the Plaintiff Late Shri
Gulshan Chawla.
3. It is the case of the Plaintiff that Late Shri Baisakhi Ram Chawla son
of Late Shri Chhabil Dass Chawla and Late Shri Ram Lal Chawla (father of
the husband of the Plaintiff Late Shri Bhagwan Dass) son of Shri Baisakhi
Ram Chawla jointly purchased the Plot No.11, Block No.A1 measuring
about 615 square yards of land situated at Krishna Nagar, Delhi 110051 vide
a Sale Deed dated 29.06.1954. By the virtue of the said Sale Deed, both Late
Shri Baisakhi Ram Chawla and Late Shri Ram Lal Chawla became the
owner of the property, each having 50% share in the property and they
divided their share measuring about 308 sq. yards each. It is stated that Shri
Baisakhi Ram passed away on 03.07.1961 and all the legal representatives
of Shri Baisakhi Ram relinquished their share in respect of the above
property in favour of Shri Bhagwan Dass, who is the husband of the Plaintiff
and son of Late Shri Ram Lal Chawla.
4. It is stated that Shri Bhagwan Dass passed away on 05.01.2004
leaving behind the Plaintiff as his widow, two sons i.e., the Defendant No.1
and Shri Gulshan Chawla and four daughters i.e., Defendant No.3 to 6
herein. It is stated that the son of Shri Bhagwan Dass i.e., Shri Gulshan
Chawla passed away on 06.09.2018 leaving behind Defendant Nos.2(i), (ii)
& (iii) herein as his LRs.
5. It is the case of the Plaintiff that Late Shri Bhagwan Dass died
intestate without leaving any Will and, therefore, the parties to the Suit are
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SINGH KIRMOLIYA
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CS(OS) 49/2019 Page 2 of 9
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entitled to have 1/7 share each in the Property bearing No. A1/11, Krishna
Nagar, Delhi 110051. It is stated that the deceased Shri Bhagwan Dass was
also the owner of the Properties bearing No.591-598, Jheel Khuranja, Delhi-
110051. The said properties are in possession of different tenants and they
are paying rent of their respective portions to the Plaintiff. It is stated that
now Defendant Nos.2(i), (ii) & (iii) have colluded with other Defendants
and are threatening to collect rent from the tenants, sell, dispose of, transfer
and create third party interest in the aforesaid properties.
6. It is stated that Defendant Nos.2(i), (ii) & (iii) have also set up their
claim on the basis of a Will dated 19.04.2003 of Late Shri. Bhagwan Dass
(husband of the Plaintiff Smt. Krishna Chawla) wherein he had bequeathed
his non-built up half portion of the Property bearing No. A1/11, Krishna
Nagar, Delhi 110051 in favour of his brother Late Shri Gulshan Chawla. It is
the case of Defendant Nos.2(i), (ii) & (iii) that the said portion of the
property is not available for partition.
7. Defendant Nos.3 and 5 have also filed a written statement wherein
they have denied the existence of a Will dated 19.04.2003 of Late Shri.
Bhagwan Dass as claimed by Defendant Nos.2(i), (ii) & (iii) and they also
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claim 1/7 share each in the properties in question. Paragraph Nos.6 and 7 of
the written statement filed by Defendant Nos.3 and 5 reads as under:
“6. The contents of Para 12 to 14 of the Plaint are
wrong and denied to the extent that the defendants are
threatening to dispose of the property or that the
defendants have colluded with each other and are
threatening to collect rent from the tenants, sell,
dispose of, transfer and create third party interest in
the aforesaid properties, as alleged or at all. It is
stated that the defendants 2(i) to (iii), and not the
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Signed By:HARIOM
SINGH KIRMOLIYA
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defendants 3 and 5, are without authority collecting the
rents from the shops stated hereinabove, to the
exclusion of all the other parties in the suit who are
entitled to 1/7th share of the same. It is further stated
that the defendants 2(i) to (iii) have been harassing,
abusing and displaying aggressive and violent
behaviour against the answering defendants 3 and
other defendants and the Plaintiff, to oust them from
the properties. It is stated that in the interest of things
and to maintain the peace, and harmony in the family,
the properties in question be partitioned.
7. The contents of Para 15 of the Plaint are not
disputed to the extent that this Hon'ble Court restrain
the defendants 2(i) to (iii) from collecting rent from the
tenants of the property and from selling, transferring,
creating any third party interest in respect of the
properties in dispute.”
8. The Plaintiff passed away on 29.09.2022. Defendant Nos.3 & 5
moved an application being I.A. No. 12/2023 under Order XXII Rule 3 of
CPC for transposing themselves as the LRs of Plaintiff. The said application
has been contested by Defendant Nos.2(i), (ii) & (iii) stating that the
deceased Plaintiff has made averments in the plaint that Defendant Nos.3 &
5 are in collusion with the remaining defendants and, therefore, they cannot
be substituted in place of the Plaintiff in view of the averments made in the
plaint. After hearing all the parties and in view of the fact that there was no
objection from Defendant Nos.1, 4 & 6, the application was allowed by the
Ld. Joint Registrar vide Order dated 05.03.2025 which is the subject matter
of challenge in the present appeal.
9. The principle contention of learned Counsel for Defendant Nos. 2(i),
(ii) & (iii) is that specific allegations have been averred by the Plaintiff
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Signed By:HARIOM
SINGH KIRMOLIYA
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(Now Deceased) against all the Defendants in the present Suit. Additionally,
a specific prayer of mandatory and permanent injunction has been sought by
the Plaintiff (Now Deceased) against all the Defendants. It is stated that in
view of the specific allegations of collusion against Defendant Nos. 3 & 5
made by the Plaintiff, Defendant Nos.3 & 5 cannot be permitted to be
substituted as the LRs of the Plaintiff.
10. Per contra , learned Counsel appearing for the Plaintiff places reliance
upon Order XXII Rule 3 and Order I Rule 10 of CPC which are being
reproduced as under:
“Order XXII Rule 3 of CPC
“3. Procedure in case of death of one of several
plaintiffs or of sole plaintiff.— (1) Where one of two or
more plaintiffs dies and the right to sue does not
survive to the surviving plaintiff or plaintiffs alone, or
a sole plaintiff or sole surviving plaintiff dies and the
right to the sue survives, the Court, on an application
made in that behalf, shall cause the legal
representative of the deceased plaintiff to be made a
party and shall proceed with the suit.
(2) Where within the time limited by law no application
is made under sub-rule (1), the suit shall abate so far
as the deceased plaintiff is concerned, and, on the
application of the defendant, the Court may award to
him the costs which he may have incurred in defending
the suit, to be recovered from the estate of the deceased
plaintiff.
Order I Rule 10 of CPC
10. Suit in name of wrong plaintiff.— (1) Where a suit
has been instituted in the name of the wrong person as
plaintiff or where it is doubtful whether it has been
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Signed By:HARIOM
SINGH KIRMOLIYA
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instituted in the name of the right plaintiff, the Court
may at any stage of the suit, if satisfied that the suit has
been instituted through a bona fide mistake, and that it
is necessary for the determination of the real matter in
dispute so to do, order any other person to be
substituted or added as plaintiff upon such terms as the
Court thinks just.
(2) Court may strike out or add parties.—The Court
may at any stage of the proceedings, either upon or
without the application of either party, and on such
terms as may appear to the Court to be just, order that
the name of any party improperly joined, whether as
plaintiff or defendant, be struck out, and that the name
of any person who ought to have been joined, whether
as plaintiff or defendant, or whose presence before the
Court may be necessary in order to enable the Court
effectually and completely to adjudicate upon and
settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing
without a next friend or as the next friend of a plaintiff
under any disability without his consent.
(4) Where defendant added, plaint to be amended.—
Where a defendant is added, the plaint shall, unless the
Court otherwise directs, be amended in such manner
as may be necessary, and amended copies of the
summons and of the plaint shall be served on the new
defendant and, if the Court thinks fit, on the original
defendant
(5) Subject to the provisions of the [Indian Limitation
Act, 1877 (XV of 1877)], section 22, the proceedings as
against any person added as defendant shall be
deemed to have begun only on the service of the
summons.”
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Signed By:HARIOM
SINGH KIRMOLIYA
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11. This Court has perused the plaint, written statements filed by
Defendant Nos.3 and 5 and Defendant Nos. 2(i), (ii) & (iii). Defendant
Nos.2(i), (ii) & (iii) have set up their claim on the basis of a Will dated
19.04.2003 of Late Shri Bhagwan Dass. Defendant Nos.3 and 5 have denied
the existence of a Will dated 19.04.2003 of Late Shri. Bhagwan Dass as
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claimed by Defendant Nos.2(i), (ii) & (iii) and they also claim 1/7 share
each in the properties in question.
12. The stand taken by Defendant Nos.3 and 5 in their written statement
is that there is no conflict of interest between them and Defendant Nos.2(i),
(ii) & (iii). The fact that allegations have been made by the Plaintiff in the
plaint that all the Defendants are in collusion loses its significance in light of
the stand taken by Defendant Nos.3 and 5 in their written statement.
13. It is well settled that in a Suit for partition, all the parties to the Suit
are Plaintiffs. Plaintiff and Defendant Nos.1, 3, 4, 5 & 6 are claiming 1/7th
share each in the properties in question. Defendant Nos.2(i), (ii) & (iii) are
opposing to the partition and claiming the share on the basis of a Will dated
19.04.2003 of Late Shri. Bhagwan Dass. There was no conflict of interest
between the Plaintiff and the Applicants.
14. The Apex Court in Pankajbhai Rameshbhai Zalavadiya v. Jethabhai
Kalabhai Zalavadiya, (2017) 9 SCC 700 has observed as under:
“16. In the matter on hand, though the trial court
had rightly dismissed the application under Order 22
Rule 4 of the Code as not maintainable at an earlier
point of time, in our considered opinion, it needs to be
mentioned that the trial court at that point of time
itself could have treated the said application filed
under Order 22 Rule 4 of the Code as one filed under
Order 1 Rule 10 CPC, in order to do justice between
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Signed By:HARIOM
SINGH KIRMOLIYA
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the parties. Merely because of the non-mentioning of
the correct provision as Order 1 Rule 10 of the Code
at the initial stage by the advocate for the plaintiff,
the parties should not be made to suffer. It is by now
well settled that a mere wrong mention of the
provision in the application would not prohibit a
party to the litigation from getting justice. Ultimately,
the courts are meant to do justice and not to decide the
applications based on technicalities. The provision
under Order 1 Rule 10 CPC speaks about judicial
discretion of the Court to strike out or add parties at
any stage of the suit. It can strike out any party who is
improperly joined, it can add anyone as a plaintiff or
defendant if it finds that such person is a necessary or
proper party. The Court under Order 1 Rule 10(2) of
the Code will of course act according to reason and
fair play and not according to whims and caprice.”
(emphasis supplied)
15. Further, the Apex Court in Azgar Barid v. Mazambi, (2022) 5 SCC
334 has observed as under:
“13. We will first deal with the objection of the
appellant that since Plaintiffs 4 to 8, whose claim was
denied by the trial court and who had not challenged
the same by way of appeal, are not entitled to relief in
the second appeal. This Court in Bhagwan
Swaroop v. Mool Chand [Bhagwan Swaroop v. Mool
Chand, (1983) 2 SCC 132] and P. Nalla Thampy
Thera v. B.L. Shanker [P. Nalla Thampy Thera v. B.L.
Shanker, 1984 Supp SCC 631] , has held that in a suit
for partition, the position of the plaintiff and the
defendant can be interchangeable. Each party adopts
the same position with the other parties. It has been
further held that so long as the suit is pending, a
defendant can ask the court to transpose him as a
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SINGH KIRMOLIYA
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plaintiff and a plaintiff can ask for being transposed as
a defendant.”
(emphasis supplied)
16. Order XXII Rule 3 of CPC provides that if the sole plaintiff or sole
surviving plaintiff dies and the right to the sue survives, then the Court, on
an application made in that behalf, shall cause the legal representative of the
deceased plaintiff to be made a party and shall proceed with the suit.
17. In view of the fact that it is well settled that in a Suit for partition, all
the parties to the Suit are Plaintiffs and since the Plaintiff and Defendant
Nos. 1, 3, 4, 5 & 6, all are claiming 1/7th share each in the properties in
question, this Court does not find any reason not to permit Defendant Nos.3
and 5 to be transposed as the Plaintiffs. In fact, it is well settled law that the
Court has power under Order 1 Rule 10(2) of the CPC to transpose a
Defendant to the category of a Plaintiff either suo-motu or on an application
of any of the Defendants.
18. In view of the above, this Court does not find any reason to interfere
with the Impugned Order passed by the Ld. Joint Registrar (Judicial).
19. Resultantly, the appeal stands dismissed.
CS(OS) 49/2019 & I.A. 1249/2019, I.A. 2997/2020, I.A. 10182/2024
20. List on 20.04.2026.
SUBRAMONIUM PRASAD, J
JANUARY 13, 2026
S. Zakir
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Signed By:HARIOM
SINGH KIRMOLIYA
Signing Date:16.01.2026
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