DEEPAK AGGARWAL AND ANR  Vs GYAN CHAND SINCE DECEASED THROUGH LRS -Judgment by Delhi High Court

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 10 January 2024
Judgment pronounced on : 19 January 2024
+ C.R.P. 90/2022, CM APPL. 29867/2022
DEEPAK AGGARWAL AND ANR ….. Petitioners
Through: Mr. Sarthak Sharma & Mr.
Pranav Menon, Advocates.
versus
GYAN CHAND SINCE DECEASED THROUGH LRS
….. Respondents
Through: Mr. Shekhar Nanavaty,
Advocate.
CORAM:
HON’BLE MR. JUSTICE DHARMESH SHARMA
J U D G M E N T
CM APPL. 29868/2022

1. This is an application under Section 151 of the Code of Civil
Procedure, 19081 moved on behalf of the petitioners seeking
exemption of filing certified copies of Annexures.
2. Heard.
3. The same is allowed.

1 CPC

CM APPL. 29866/2022

4. This application is filed under Section 5 and 14 of The
Limitation Act, 1963 for condonation of delay of 1036 days in filing
the revision petition. No reply to the same has been filed by the
respondent.
5. The petitioners, who were the plaintiffs in a suit No.
613912/2016, are assailing impugned order dated 11.08.2017 as also

subsequent order arising from their review application dated
08.06.2022, whereby the learned Trial Court dismissed the review
application and has reiterated the original order dated 11.08.2017,
whereby the suit was held to have been abated in terms of Order XXII
Rule 9 of the CPC. The application for condonation of delay becomes
inconsequential since the present revision petition raises a pure
question of law.

C.R.P. 90/2022

6. Shorn of unnecessary details, the parties are cousin brothers
from same ancestral lineage and the petitioners/plaintiffs are claiming
rights, title and interest in the property in question. They claimed that
defendant has no legal right and interest to continue in occupation of
the property in question. The petitioners/plaintiffs in the suit sought
relief in the nature of possession of portions on the ground floor, first
floor as well as second floor of the property in question besides
seeking damages and mesne profits at the rate of Rs.206/- per month
w.e.f. 01.09.2006 i.e., from the date of filing the suit and at a future
rate i.e., Rs.200/- per day.
7. The record shows that the sole defendant in the pending suit
died on 24.10.2013 and an application under Order XXII Rule 4 CPC
was moved on behalf of applicant/petitioner/plaintiff on 19.03.2014 so
as to bring on the record legal heirs of the deceased defendant, viz., his
wife, daughter and son. The said application came to be dismissed by
the learned Trial Court vide impugned order dated 11.08.2017
assigning the following reasons:-

�I have, carefully, considered the submissions made by Ld. Counsels
for the parties and perused the entire record and has also gone through
the contents of the order dated 03.09.2013, passed by my Ld.
Predecessor and I am fully convinced that the plaintiff should have
moved an application for setting aside the abatement, already ensuing,
and not the present application, merely, to bring the proposed LRs of
deceased defendant on record, when on his own saying, that the
defendant died on 24.10.2013, as mentioned in the present application
and parties, residing in the same building as apparent from their
addresses available on record and even service of summons, to the
proposed LRs being made on the same address/addresses and as such,
it is unbelievable that the plaintiff was not aware of the death of the
defendant, on 24.10.2013, earlier than the second week of March, 2014
and as such the application for condonation of delay does not disclose
sufficient cause for condonation of delay of 56 days and is hereby,
rejected, consequently the present application, moved U/o 22 Rule 4 ,
CPC also fails and suit abates.
File be consigned to Record Room.�

8. Aggrieved thereof, evidently an application was filed on behalf
of the petitioners/plaintiffs under Order XLVII Rule 1 of the CPC
seeking review of order dated 11.08.2017, which eventually came to
be dismissed vide impugned order dated 08.06.2022.
9. Upon notice of the present revision getting served, the
respondents/LRs of deceased defendant have raised a preliminary
objection to the effect that the present revision petition is not
maintainable. It is vehemently urged that by the learned counsel for
the respondents/LRs of deceased defendant that since the original
order dated 11.08.2017, which was appealable under Order XLIII of
the CPC was merged into the order dismissing the review application
vide order dated 08.06.2022, the present revision petition is not
maintainable.
10. Per contra, it has been urged that the case law cited by the
learned counsel for the respondent has no application in the instant

matter since it does not deal with a situation wherein the substantive
order merges with the order of review.
11. Having heard learned counsel for the rival parties at the Bar
and upon perusal of the record, I find that the instant civil revision
petition, primarily against the impugned orders is not sustainable.
12. It would be expedient to refer to the observations of the Apex
Court in the cited case of Rahimal Bathu and Ors. v. Ashiyal Beevi2
wherein it was observed as under:-

2 2023 SCC OnLine SC 1226

�24. What is clear from the above observations is, that where the
review is allowed and the decree/order under review is reversed or
modified, such an order shall then be a composite order whereby
the court not only vacates the earlier decree or order but
simultaneous with such vacation of the earlier decree or order,
passes another decree or order or modifies the one made earlier.
The decree so vacated, reversed or modified is then the decree that
is effective for the purposes of a further appeal, if any,
maintainable under law. But where the review petition is
dismissed, there is no question of any merger and anyone
aggrieved by the decree or order of the Tribunal or Court shall
have to challenge within the time stipulated by law, the original
decree and not the order dismissing the review petition. Time
taken by a party in diligently pursuing the remedy by way of
review may in appropriate case be excluded from consideration
while condoning the delay in the filing of the appeal, but such
exclusion or condonation would not imply that there is a merger of
the original decree and the order dismissing the review petition.�
{Bold portions emphasized}

13. A careful reading of the aforesaid observations would show that
where a decree/order is modified on review, an appeal is maintainable,
whereas if the review application is dismissed, thereby maintaining
the original decree/order, only an appeal lies and not a civil revision.
It may be reiterated that the learned Trial Court has proceeded to

exercise its powers under Order XXII Rule 9 (2)3 of the CPC and has
not found any sufficient cause that prevented the petitioners/plaintiffs
from filing application for setting aside the abatement or dismissal
within the stipulated period of limitation, and the said order is
patently appealable under Order XLIII Rule 1 (k) of the CPC.
14. Before parting with this case, it may be noted that the
arguments were addressed on 10.01.2024, on which date, the order
was reserved. The present matter was mentioned by the learned
counsel for the petitioners/plaintiffs appearing through video
conferencing on 18.01.2024 requesting that he may be allowed to
withdraw the present revision petition. However, no advance notice
was served upon the respondent and in the absence of express consent
emanating from the respondent, and considering that there is no hiatus
between the date of reserving the judgment and pronouncement, this
Court declined the request of the learned counsel for the
petitioners/plaintiffs.
15. In view of the foregoing discussion, the present revision petition
is dismissed. Subject to just exceptions, the petitioners/plaintiffs shall
be at liberty to institute an appeal as per the law.
16. The pending application also stands disposed of.

3 9. Effect of abatement or dismissal.-
(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the
assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the
abatement or dismissal, and if it is proved that he was prevented by any sufficient cause from
continuing the suit, the Court shall set aside the abatement of dismissal upon such terms as to costs
or otherwise as it thinks fit.

DHARMESH SHARMA, J.
JANUARY 19, 2024
Sadique