Order 28

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CS No. 392/2021
DR. RAJEEV SOOD Vs. STAR HEALTH & ALLIED
INSURANCE CO. LTD.
07.07.2025
Present : Sh. D. Verma, Ld. Counsel for the LRs of the
plaintiff.
Ms. Shuchi Sood, Ld. Counsel for the defendant,
through VC along with Sh. B.S. Dhir, Ld. Counsel.
The case is now pending for deciding the application
whether LR of the plaintiff who has died on 26.06.2024 be
brought on record. The record shows that there are two
applications moved in this regard. The first application is moved
U/o.1 Rule 10 CPC and reply to the same was also filed
specifically pointing out that there is a provision U/o. XXII Rule
3 in CPC for bringing on record the LRs. An application U/o.
XXII Rule 3 was also moved and reply to that was also filed.
Hence, now the contention of the defendant is that as the
application moved U/o. XXII Rule 3 is beyond limitation hence
the suit stands abated. There is no application for setting aside of
the abatement and condonation of delay. I agree with the
contention of Ld. Counsel to that extent that so far as the
application U/o.XXII Rule 3 CPC is concerned which was moved
on 20.12.2024 as it was moved after about six months from the
date of death of the plaintiff. But the record also shows that the
earlier application U/o. 1 Rule 10 CPC was moved within the
period of limitation. The only contention raised is that the
provision mentioned is U/o.1 Rule 10 CPC and not U/o. XXII
Rule 3 CPC.
I have considered the contention though the
provision mentioned is only U/o. 1 Rule 10 CPC but the prayer is
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that the plaintiff has died leaving behind the LRs i.e. the wife and
one son and that they be taken on record as legal heirs of
plaintiff. It is settled principle of law that mentioning wrong
provision of law does not affect the merits. The Court has to
consider the facts and pleadings and the law which is applicable.
Even if there is no provision mentioned still the Court has to
consider whether the law permits the same or not.
In the present case, the plaintiff has died, the death
certificate is already on record. This fact that he has died is not
disputed hence the question remains whether the right to sue
survives or not and that also in favour of the LRs. The record
shows that it is a suit for recovery along with pendentelite and
future interest. The relief claimed is not with respect to the
personal right of the plaintiff, which survives till the plaintiff was
alive and goes with him. Here is the case where the right to sue
still survives after the demise of the plaintiff. The right to sue
survives in favour of the LRs of the plaintiff hence, application is
allowed but since another application is moved for which the
defendant has to file the reply & take steps, hence the plaintiff is
burdened with cost of Rs.5,000/- to be paid to the defendant.
Amended memo of parties be filed within 07 days supplying the
copy to the defendant.
Now to come up on 18.08.2025 for final arguments.
(Virender Kumar Bansal)
Principal District & Sessions Judge
New Delhi District
Patiala House Courts/ND/07.07.2025
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