[Order XXII Rule 3 CPC] Delay In Filing Application For Substitution Of Legal Heirs Must Be Sufficiently Explained: Delhi High Court

The Delhi High Court has held that applications under Order XXII Rule 3 of CPC for substitution of legal heirs, or under Order XXII Rule 9 of the Code for setting aside abatement of proceedings must be considered liberally. However, the delay in moving such applications must be sufficiently justified. A single bench of Justice C. Hari Shankar further stated that any such delay must meet the threshold requirement which an application seeking condonation of delay is required to meet. Briefly, the facts of the case are that a consumer case was preferred by the respondents against the petitioner herein before the National Consumer Disputes Redressal Commission (NCDRC). The consumer case was filed as a joint consumer complaint, and was stated to have been preferred in a representative capacity for the benefit of entire class of persons having the same interest. The consumers in question were flat buyers who allegedly received in habitable flats. The complaint sought a direction to the petitioner to refund the amounts deposited by the flat buyers along with interest and damages of ₹ 10 lakhs to each investor. This complaint was accompanied by an application under Section 12(1)(c) of the Act, for permission to the respondents to file a consumer complaint in representative capacity, representing the interest of all the investors in the project. An order was passed by the NCDRC before arguments were heard on the application of the respondents under Section 12(1)(c) of the Act. As such, this judgement examines the sustainability of the impugned order when permission to file a joint application was yet to be granted under Section 12(1)(c) and whether the NCDRC could have passed the impugned order at that stage. The NCDRC noted that, during the course of the proceedings, Respondent No. 1, O.P. Mehta passed away. Accordingly, the NCDRC directed the respondents to bring the legal representatives of Respondent No. 1 on record within one week. However, the same was done after a delay of 607 days.The issues that arose for consideration in this case were– (i) whether the consumer complaint case filed by the respondents had abated owing to no formal application for substitution of the legal heirs being preferred within the stipulated time; (ii) if so, whether the delayed application filed for the substitution of the legal representatives could be treated as an application for setting aside the abatement of the complaint, and; (iii) whether the decision of the NCDRC to condone the delay in filing the IA can sustain.To answer the first issue, the court analysed Section 12(1)(c) of the Act and found that the purported section stated that a complaint in relation to any goods or services sold or delivered or agreed to be sold or delivered may be filed with a District Forum by one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested. The court stated that this provision was made applicable to the NCDRC by Section 22(1) of the Act and by application of Section 22(1), the words "District Forum", as contained in Section 12(1)(c) may be read as "National Commission". The court further held that Section 12(1) makes it apparent that a complaint, in a representative capacity, may be filed with the concerned consumer protection forum only with the permission of such forum. The court opined that–"In the case of the NCDRC, therefore, a complaint, in representative capacity, may be filed with the NCDRC, only with the permission of the NCDRC. Till such time as permission is granted, therefore, the complaint cannot be treated as having been filed, even if it has, technically speaking, been tendered in the Registry. Undisputedly, on the date when the impugned order came to have been passed by the learned NCDRC, no permission had been granted by it, under Section 12(1)(c) of the Act, for filing a complaint in a representative capacity...On the date when the impugned order came to be passed, it could not be said that the consumer complaint of the respondents had been brought in a representative capacity so as to exclude the application of Rules 3 and 4 of Order XXII. I, therefore, am of the opinion that the contention that Rules 3 and 4 of Order XXII of the CPC did not apply in the present case, which was governed exclusively by Order XXII Rule 10, is bereft of substance. It is accordingly rejected."Thus, the court found that the consumer complaint case filed by the respondents had abated owing to no formal application for substitution of the legal heirs being preferred within the stipulated time.While dealing with the second issue, the court cited the judgement of Mithailal Dalsangar Singh v. Annabai Devram Kini which stated that–"A simple prayer for bringing legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside...

[Order XXII Rule 3 CPC] Delay In Filing Application For Substitution Of Legal Heirs Must Be Sufficiently Explained: Delhi High Court

Padmakshi Sharma

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