Full Judgment Text
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 26.09.2023
+ CM(M) 1135/2018 & CM APPLs. 38632/2018, 56055/2022
JASWANT SINGH BASETIA ..... Petitioner
Through: Mr. Sunil Aggarwal, Advocate
versus
UMESH CHAUDHARY & ORS ..... Respondent
Through: Mr. Mohit Gupta and Ms. Aayushi
Jain, Advocates for R-1
Mr. N.P. Singh and Mr. Vikalp
Mishra, Advocates for Defendant
No.3
%
CORAM:
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
J U D G M E N T
MANMEET PRITAM SINGH ARORA, J (ORAL) :
1. This order is being passed in continuation of the order dated
20.09.2023 passed by this Court.
2. Mr. Mohit Gupta, learned counsel for Respondent Nos. 1 states that
he has examined the judgment of Mithailal Dalsangar Singh and Ors. Vs.
Annabai Devram Kini and Ors., (2003) 10 SCC 691 and concedes that the
ratio of the said judgment is applicable and no separate application for
setting aside abatement is mandatory. He states that in fact another judgment
of PankajBhai RameshBhai Zalavadia v. Jetha Bhai KalaBhai Zalavadia
(Deceased) through LR’s & Ors (2017) 9 SCC 700 also supports the
Signature Not Verified
CM(M) 1135/2018 Page 1 of 3
Digitally Signed
By:Mahima Sharma
Signing Date:27.09.2023
20:49:36
contention of the Petitioner herein.
2.1. He states that in view of the said judgments he fairly concedes that the
legal representatives of deceased defendant no.3 and defendant no.4 may be
impleaded and taken on record.
2.2. He states that however, this is without prejudice to the application
filed by defendant no.1 i.e., Respondent No.1 under Order 7 Rule 11 of
Code of Civil Procedure, 1908 (‘CPC’) which is pending for consideration
before the Trial Court.
2.3. He states that defendant no.2 is untraceable, therefore, plaintiff would
be required to be served in accordance with the Order 5 of CPC. He states
that legal representatives of defendant no. 4 have not been appearing in this
petition and fresh steps shall have to be taken by the plaintiff to serve them
in the suit proceedings.
3. The learned counsel for Respondent No. 3 states that he adopts the
submissions of learned counsel for Respondent No.1.
4. In reply, learned counsel for the Petitioner states that he has no
objection to the submissions made by the counsel for the Respondent. He
states that plaintiff will take appropriate steps to serve defendant no.2
through publication, if necessary and take fresh steps for the issuance of
summons to the legal representatives of defendant no.4 before the Trial
Court.
5. Accordingly, in view of the aforesaid submissions of the parties, the
impugned order dated 13.11.2017 is set aside with the consent of the parties
and the application filed by the Petitioner herein for bringing on record the
legal representatives of deceased defendant no.3 and defendant no.4 is
allowed.
6. The Petitioner is directed to file an amended memo of parties before
Signature Not Verified
CM(M) 1135/2018 Page 2 of 3
Digitally Signed
By:Mahima Sharma
Signing Date:27.09.2023
20:49:36
the Trial Court within a period of two (2) weeks and take appropriate steps
for service of summons on defendant no.2 and newly impleaded legal
representatives of defendant no.4 in accordance with law.
7. The Petitioner will be at liberty to rely upon the record of this Court
for seeking any direction from the Trial Court for service on defendant no.2
and legal representatives of defendant no.4 by way of publication. However,
the directions will be passed by the Trial Court after examining the record in
and accordance with law.
8. The learned Trial Court is further requested to take up and hear the
application filed by defendant no.1 under Order 7 Rule 11 CPC without
awaiting the completion of service on defendant no.2 and/or legal
representatives of defendant no. 4, since the said application is a matter
between defendant no.1 and the plaintiff alone.
9. With the aforesaid directions, present petition stands allowed.
10. The parties are directed to appear on the next date of hearing fixed
before the Trial Court i.e., 06.10.2023.
11. Pending applications, if any, stands are disposed of. Interim orders, if
any, stand vacated.
MANMEET PRITAM SINGH ARORA, J
SEPTEMBER 26, 2023/ msh/ms
Click here to check corrigendum, if any
Signature Not Verified
CM(M) 1135/2018 Page 3 of 3
Digitally Signed
By:Mahima Sharma
Signing Date:27.09.2023
20:49:36