BHAGWANTI Vs. KANSHI RAM

JUDGEMENT

(1.) This appeal has impugned the judgment and decree dated 26.10.2005 which had endorsed the finding of the trial judge dated 16.10.2004 whereby the suit filed by the Plaintiff Bhagwanti Devi seeking injunction against the Defendant Kanshi Ram had been dismissed. The Defendant Kanshi Ram had died on 10.2.2003. An application under Order 22 Rule 4 of the Code of Civil Procedure (hereinafter referred to as 'the Code') had been filed by the Plaintiff seeking to implead the legal representatives of the deceased Defendant. The application had been contested on the ground that the right to sue does not survive against the legal heirs of the deceased as the suit was simplicitor a suit for permanent injunction. Allegations made in the plaint were against the Defendant in his personal capacity and not against the legal heirs of the deceased Defendant. These contentions of the Defendant were upheld. The application under Order 22 Rule 4 of the Code had been dismissed. The result was that the suit also stood dismissed. This finding was affirmed by the first Appellate Court.

(2.) This is a second appeal. This Court can interfere with the fact findings of the Courts below only if a substantial question of law arises. Substantial questions of law have not been mentioned in the body of the appeal. On this ground alone the appeal is liable to be dismissed. However, in view of the oral submission made by learned Counsel for the Appellant as also his submission that the grounds of appeal which have been mentioned in the body of the appeal be treated as the substantial questions of law, further arguments have been addressed by the learned Counsel for the parties on this score. The grounds of appeal as mentioned in the body of the appeal are accordingly treated as the substantial questions of law phrased by the Appellant. They have been perused; they all border on the proposition as to whether where the sole Defendant had died, the cause of action survives against his legal representatives, which is propounded on the premise of the applicability of provisions of Order 22 Rule 4 of the Code.

(3.) The present suit was a simplicitor suit for permanent injunction. The relief claimed was against the sole Defendant Kanshi Ram to restrain him and his associates etc. from making any kind of interference in the construction work of the first floor of Shop No. 136, New Rajinder Nagar Market. New Delhi. According to the Plaintiff the cause of action arose when the Defendant started making interference in the construction work of the Plaintiff in the suit property. His case was that he has sanction from the Municipal Corporation of Delhi to carry out the construction and the interference by the Defendant was unwarranted. Admittedly, the Defendant had expired on 5.10.2003. It is clear from the pleadings that the cause of action has arisen in favour of the Plaintiff and against the deceased Defendant alone; the grievance of the Plaintiff was against the Defendant in his personal capacity. It can in no manner be said that the cause of action extended to his legal representatives. The findings of the Courts below calls for no interference. In, Asha Batra v. Dharam Devia, 2004 110 DLT 662 similar question had arisen wherein also a Bench of this Court had held that a suit for injunction would come to an end on the death of the sole Defendant as the plea of forcible dispossession set up by the Plaintiff would become an illusion on the death of the said Defendant.