MRS. RAMMIE TIKKU (SINCE DECEASED) THROUGH L.RS. AND ANR. Vs. SMT. RUBIE SULOCHANA NANDA (SINCE DECEASED) THROUGH L.RS. AND ANR.

JUDGEMENT

(1.) BY this common order I propose to dispose of applications filed in both the appeals under Order XXII Rule 4 read with Section 151 CPC as also the applications under Section 5 of the Limitation Act for condonation of delay in filing the applications under Order XXII Rule 4 CPC.

(2.) THE appellant No. 2 Major Ravinder Nath Tikku along with his mother Smt. Rammie Tikku and minor brother Shashinder Nath Tikku had filed a suit for permanent injunction against one Smt. Rubie Sulochana Nanda in 1980. That suit was filed on the allegations that Smt. Rubie Sulochana Nanda had sold to them her half undivided share in property No. 164, Jor Bagh, New Delhi vide sale deed dated 04/09/72. Subsequently an agreement dated 20th October, 1972 was also executed by Mrs. Nanda with the plaintiffs that in case she would decide to sell her remaining half undivided share in the said property the same would also be sold to them. However, in 1980 Smt. Nanda decided to sell her remaining half share in breach of the agreement dated 20th October,1972 to some third party. In order to stop the intended sale/transfer by Smt. Nanda to any third party the suit for permanent injunction was filed. In that suit, Smt. Rubie Sulochana Nanda filed her written statement and claimed, inter -alia, that the agreement relied upon by the plaintiffs was got executed from her by fraud and so was not enforceable. In that suit Smt. Nanda was restrained from selling or disposing of her half undivided share, during the pendency of the suit, to anyone except the plaintiffs. Later on another suit was filed by the Tikkus in 1982 against Smt. Rubie Sulochana Nanda for specific performance of the agreement dated 20th October, 1972 since the said Smt. Nanda had transferred the portion of property No. 164 in her possession in favour of one Avtar Mohan Bahal, respondent No. 2 in R.F.A. No. 600/03, by way of lease dated 4th August,1981. That transfer by way of lease, according to the plaintiffs, in fact amounted to sale of her half undivided share the lease was for nine years and eleven months but was renewable for further two similar terms at the option of the tenant and that too without any increase in rent. In that suit the tenant Mr. Bahal was also impleaded as defendant No. 2. The main prayers in that suit were for directing Mrs. Nanda to sell her remaining half share to the plaintiffs and to direct Mr. Bahal to join in the execution of that sale deed as also for cancellation of the leased deed in favour of Mr. Bahal.

(3.) FINALLY , both the suits came to be dismissed by the trial Court vide common judgment dated 27th February, 2003. Feeling aggrieved, the sole surviving plaintiff Major Ravinder Nath Tikku only filed two separate appeals but in the memo parties the deceased plaintiff Smt. Rammie Tikku was also mentioned as appellant No. 1 and shown to be represented by her legal representatives. Notices of the two appeals were sent to respondent Nos. 1(a) to (g), who are the legal representatives of the deceased Smt. Rubbie Sulochana Nanda, as also to respondent 1(h) N.G. Walia and respondent No. 2 Avtar Mohan Bahal but the same could be served upon some of them only including Walia and Bahal. The other respondents who were served did not choose to contest the appeals. Regarding unserved respondents, upon enquiries being made by the appellant Maj. Ravinder Nath Tikku found that R -1(a) Smt. Dorothy Ganapathy, who was the sister of the deceased Smt. Nanda, R -1(b) Shri Manohar Singh Brar, who was the son of another sister of deceased Smt. Nanda and R -1(c) Smt. Kuldeep Kaur, who was also the sister of Smt. Nanda, had died during the pendency of the suits. So, in both the appeals applications under Order XXII Rule 4 CPC were filed. Separate applications for condonation of delay in moving the applications under Order XXII Rule 4 CPC were also filed on the ground that death of these persons was not within the knowledge of the plaintiffs. As far as Smt. Dorothy Ganapathy is concerned, no such applications were filed since her heirs were stated to be already on record. Notices of the applications under Order XXII Rule 4 and Section 5 of the Limitation Act were served upon the proposed legal representatives of the deceased respondents No. 1(b) and 1(c) but none entered appearance to contest the applications. However, respondent No. 2 Avtar Mohan Bahal has opposed these four applications.