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Munni Devi and ors. Vs. Municipal Corporation of Delhi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 1280 of 1981
Judge
Reported in29(1986)DLT38; 1985(9)DRJ270; 1985RLR544
ActsCode of Civil Procedure (CPC), 1908 - Order 22, Rule 3; Succession Act, 1925 - Sections 306
AppellantMunni Devi and ors.
RespondentMunicipal Corporation of Delhi
Advocates: Hari Shankar and; D.S. Narula, Advs
Cases ReferredIn Meenakshi v. Presiding Officer
Excerpt:
.....procedure - order 22, rule 3--question if the applicants are the legal representatives of the deceased plaintiff ?--the application under order 22 rule 3 was supported by an affidavit--there is no counter affidavit with the reply filed.; it must be held that the applicants are the heirs and the legal representatives of the deceased plaintiff.; code of civil procedure - order 22, rule 3--survival of right to sue--how to ascertain?--according to section 306 of indian succession act 1925, all rights to prosecute any action existing in favor of the person at the time of his death survive to his executors or administrators under the provision except causes of action for defamation, assault or other personal injuries and cases where the relief sought cannot be enjoyed or granted--right to..........electric power load for running the trade at the said premises; but he was directed to obtain license for water-trolleys for running the business; that the employees of the corporation illegally and unauthorisedly removed his water-trolleys from the various sites; and thus has claimed for the grant of license/tehbazari in his favor on various grounds detailed in the plaint. (3) prabhu dayal koli, predecessor of the petitioners unfortunately was murdered on 26th june 1980. on the 10th july, 1980 the petitioners filed the application under order 22 rule 3 of the code of civil procedure alleging that they were the heirs and legal representatives of the deceased; and the entire estate and all other rights devolved upon them, that they were entitled to be substituted as plaintiffs; and.....
Judgment:

Sultan Singh, J.

(1) This revision under Section 115 of the Code of Civil Procedure is directed against the judgment and order dated 12th November, 1981 dismissing the petitioner's application under Order 22 Rule 3 of the Code of Civil Procedure.

(2) Briefly these are the facts. Smt. Munni Devi, petitioner No. 1 is the widow Budh Parkash and Narsi petitioners No. 2 and 3 are the sons, Veena and Guddo, petitioners No. 4 and 5 are the daughters of the deceased Prabhu Dayal Koli. Prabhu Dayal Koli had filed a suit on 6th June, 1980 for a decree of mandatory injunction against the Municipal Corporation of Delhi directing it to grant license /tehbazari in his favor for parking his water-trolleys at the sites mentioned in Annexure 'A' attached with the plaint for sale of cold water from the water cooling plant on payment of prescribed tehbazari fees/charges. He had also prayed for a decree for permanent injunction restraining the Municipal Corporation, its officials etc. from removing/lifting any of his water-trolley from the said sites. In the plaint it was alleged that Prabhu Dayal Koli had installed a water cooling plant 'at shop No. 84-A and B, Hari Nagar, Ashram, New Delhi and was running trade of selling refrigerated cold water through water-trolleys for the list several years and for that purpose he had been using the sites detailed in Annexure 'A' attached with the plaint for parking trolleys; that previously he was running a flour Mill at the said premises with an electric load of 10 Hp and the defendant Corporation had issued a license in his favor for running the said flour Mill; that he had approached the defendant corporation on 26th October, 1978 for grant of a license/permission for installation of water cooling plant at the said premises and vide let:er dated 8th November) 1978 he was directed to make arrangement for proper disposal of waste water in the Municipal Sewer so that his application for the license may be further considered; that vide letter dated 2nd January, 1979 he informed the defendant Corporation that an outlet for waste water had been made as per Corporation letter dated 8th November, 1978; that the Corporation vide letter dated 16th January, 1979 granted 'No objection' certificate to him under Section 416 of the Delhi Municipal Corporation Act for obtaining electric power load for running the trade at the said premises; but he was directed to obtain license for water-trolleys for running the business; that the employees of the Corporation illegally and unauthorisedly removed his water-trolleys from the various sites; and thus has claimed for the grant of license/tehbazari in his favor on various grounds detailed in the plaint.

(3) Prabhu Dayal Koli, predecessor of the petitioners unfortunately was murdered on 26th June 1980. On the 10th July, 1980 the petitioners filed the application under Order 22 Rule 3 of the Code of Civil Procedure alleging that they were the heirs and legal representatives of the deceased; and the entire estate and all other rights devolved upon them, that they were entitled to be substituted as plaintiffs; and the right to sue survived to them. This application was supported by an affidavit of Smt. Munni Devi, widow. The Corporation in its reply dated 19th September, 1980 pleaded that the right to sue did not survive to the petitioners, that they were not the heirs and legal representatives of the deceased. The trial court by the impugned order held that the right to sue did not survive and dismissed the application.

(4) The learned counsel for the petitioners submits that the right to sue survives, and as heirs and legal representatives, they are entitled to be substituted as plaintiffs. Two questions arise in this matter

1. Whether the petitioners are the heirs and legal representatives of the deceased 2. Whether the right to sue survive

(5) The application of the petitioners under Order 22 Rule 3 of the Code of Civil Procedure is supported by an affidavit. There is no counter affidavit. So it must be held that the petitioners are the heirs and legal representatives of the deceased plaintiff. The next question is whether the right to sue survives. According to the plaint the deceased had installed a water cooling plant in the shop at Hari Nagar Asliram, New Delhi and he was running trade of selling refrigerated cold water through water-trolleys. He had made an application for the grant of license and in facts vide letter dated 16th January, 1979 the Zonal Health Officer of the Municipal Corporation of Delhi granted a 'No Objection Certificate' under Section 416 of the Delhi Municipal Corporation Act for the installation of water cooling plant. The deceased, thereforee, prayed for a decree for mandatory injunction directing the corporation to grant the license. He further prayed for an injunction restraining the corporation and its officials from removing any of his water trolleys from the sites detailed in annexure 'A' attached with the plaint. The rights claimed in the plaint were not personal rights but were rights in property. The deceased was carrying on its business. His heirs are also entitled to inherit his business with all the rights of the deceased in the property. Right to carry on business is a valuable right, it is a property which is heritable by the heirs.

(6) Section 306 of the Indian Succession Act 1925 reads as under :

'ALL demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favor of or against a person at the time of his decease survive to and against his executors or administrations except causes of action for defamation, assault, us defined in the Indian Penal Code or other personal injuries not causing the death of the party and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.'

All rights to prosecute any action existing in favor of a person at the time of his death survive to his executors of administrators under this provision except causes of action for defamation, assault or other personal injuries and cases where the relief sought cannot be enjoyed or granted.

(7) In Girijanandini Devi and others v. Bijendra Narain Choudhary, : [1967]1SCR93 it has been observed :

'THE Maxim 'Action personal is moritur sum person' a personal action dies with the person, has a limited application. It operates in a limited class of actions ex-delicate such as actions for damages or defamation, assault the or other personal injuries not causing the death of the party and in other actions where after the death of the party the relief granted could not be enjoyed or granted it would be negatory.'

From these observations it is apparent that personal actions of the deceased do not survive and all other actions do survive.

(8) In Meenakshi v. Presiding Officer, Mysore State Transport Appellate Tribunal and others, 1963 Mys 278 it has been observed that an application for a permit under Section 46 of the Motor Vehicles Act does not abate with the death of the applicant. The deceased in that case had/made an application for state carriage permit under Section 46 of the Motor Vehicles Act. The question was whether it was a personal right or this right survived after his death. It was held that the legal representative was entitled to prosecute the application.

(9) In the instant case the right created by the license for the grant of which an application is made, is a right which has relation to the use of premises or trolleys and not a right which is personal to the licensee. The respondent Corporation can be restrained from removing the trolleys of the deceased from the disputed sites at the instance of the heirs. No provision has been brought to my notice under which the petitioners as heirs arc not entitled to grant of license. I am, thereforee, of the opinion that the petitioners inherit all rights of the deceased relating to the matters in dispute in the present litigation. In other words, the right to sue survives to the petitioners. It is thereforee held that the trial court acted illegally in the exercise of its jurisdiction. The revision petition is accepted setting aside the order dated 12th November, 1981. The petitioners are directed to be substituted as heirs and legal representatives of the deceased plaintiff Shri Prabhu Dayal Koli There will be no order as to costs in this revision. Parties are directed to appear before the trial court on 7th October, 1985.


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