Delhi High Court: In a review petition filed by the review petitioner Atul Beri, seeking review of the order dated 06-04-2022, wherein the Court impleaded both Atul Beri and Deepak Beri (sons of the deceased plaintiff) as the legal representatives of the deceased plaintiff, Late Shri S.K Beri, Amit Bansal, J., held that the ‘right to sue’ can only accrue in favour of Atul Beri, who was neither a party in the suit, nor had any conflict with the interest of Late Shri S.K. Beri. The Court further impleads Atul Beri as the sole legal representative of Late Shri S.K. Beri to represent his estate in the present suit.
The present suit was filed on behalf of Late Shri S.K. Beri against one of his sons, Deepak Beri, and his wife and children seeking the following reliefs:
Firstly, a decree of possession in favour of the plaintiff and against the defendants regarding the entire Basement and entire second floor with the right to construct and own any areas/floors on the said terrace and subsequent terraces thereupon.
Secondly, a decree of permanent injunction against the defendants permanently restraining the defendants claiming a right through them, from transferring, selling, alienating and creating any third-party rights with respect to the entire Basement and entire Second Floor.
Thirdly, a decree of mandatory injunction against the Defendants and in favour of the plaintiff, directing the defendants to not disturb the peaceful possession of the plaintiff.
During the pendency of the present suit, Shri S.K. Beri expired on 20-02-2021. Pursuant to which, an application under Order XXII Rule 3(1) of Civil Procedure Code (CPC) was filed on behalf of Atul Beri seeking his substitution as the legal representative of Late Shri S.K. Beri in the present suit. The Court impleaded both Atul Beri and Deepak Beri, being the two sons of Late Shri S.K. Beri, as the legal representatives of Late Shri S.K. Beri. Assailing this, the review petitioner, Atul Beri seeks a review of the aforesaid order.
Placing reliance on Jaladi Saguna v. Satya Sai Central Trust¸ (2008) 8 SCC 521, Chandralekha v. Sujatha, ILR 2010 KAR 2564 and on perusing Section 2(11) of CPC, Order XXII Rule 5 of the CPC, the Court noted that the reliefs claimed in the present suit by Late Shri S.K. Beri were specifically against Deepak Beri and his family members. Deepak Beri has contested the suit by filing a written statement controverting the averments made to the plaint and seeking dismissal of the present suit.
The Court concluded that where the interest of the legal representative conflicts with the interest of the deceased plaintiff and he was a party in the suit as a defendant, he cannot be permitted to represent the estate of the deceased plaintiff. Therefore the ‘right to sue’ in the present case cannot accrue in favour of Deepak Beri.
Thus, the Court held that the ‘right to sue’ can only accrue in favour of Atul Beri, who was neither a party in the suit, nor had any conflict with the interest of Late Shri S.K. Beri.
[S K Beri v. Deepak Beri, 2023 SCC OnLine Del 789, decided on 09-02-2023]
Judgment by: Justice Amit BansalAdvocates before Court
Advocates who appeared in this case:
Mr. Rajshekhar Rao, Senior Advocate with Mr. Samar Kachwaha, Mr.Raghavendra Bajaj, Ms. Shivangi Nanda, Mr. Agnish Aditya, Ms. Kavita Vinayak, Mr.Anmol Agarwal and Ms. Rini Mehra, Advocates for the Plaintiff;
Mr. Akshay Makhija, Senior Advocate with Mr. Saurabh Seth, Ms. Seerat Deep Singh, Advocates for the Defendants.
*Arunima Bose, Editorial Assistant has reported this brief.