Allahabad High Court
Bhagwan Deen vs Addl. District Judge Kheri And ... on 9 July, 2013
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 21
Case :- RENT CONTROL No. - 81 of 2002
Petitioner :- Bhagwan Deen
Respondent :- Addl. District Judge Kheri And Others
Counsel for Petitioner :- K.S.Rastogi
Counsel for Respondent :- C.S.C.,Avadhesh Kumar I
Hon'ble Sibghat Ullah Khan,J.
Sri Awadhesh Kumar, learned counsel for the respondents states that initially he was appearing for respondent nos. 3,4 and 5 but the client has taken away his file and he is no more counsel in this case.
Heard Sri K.S. Rastogi, learned counsel for the petitioner.
Smt. Chameli Devi, land lady filed a suit for eviction against the tenant petitioner in the form of SCC Suit No. 1 of 1992 before JSCC, Mohammadi, District Lakhimpur Kheri. In the suit an order was passed striking off the defence of the tenant petitioner. Against the said order, tenant petitioner filed a revision. During the pendency of the said revision Smt. Chameli Devi died and was substituted by respondent nos. 3,4 and 5. The revision was thereafter allowed and the matter was remanded to the trial court. Respondent nos. 3,4 and 5 again filed application for substitution but it was quite late. That application was allowed on 7.7.2000 by JSCC, Mohammadi, District Lakhimpur Kheri. Against the said order, petitioner filed revision being SCC Revision No. 9 of 2000. Additional District Judge, Court No.6, Lakhimpur Kheri has dismissed the revision on 22.01.2002, hence this writ petition.
The argument of learned counsel for the petitioner is that substitution application was highly belated; respondent nos. 3 to 5 were aware of the pendency of the suit; there was absolutely no explanation of delay and proper application for condonation of delay had not been filed; more over application for setting aside the abatement had also not been filed.
The question is as to whether it was necessary for respondent nos. 3 to 5 to file a fresh application for substitution in the suit although they had already been substituted in the revision, during pendency of the suit.
Learned counsel for the petitioner has cited the following authorities:-
(i) Chandradeo Pandey and others vs. Sukhdeo Rai and others reported in AIR 1972 ALLAHABAD 504.
(ii) Union of India vs. Ram Charan reported in AIR 1964 Supreme Court 215.
These authorities deal with ordinary application for substitution in a suit.
In the following authorities it has been held that if in any misc. appeal against an interlocutory order passed in a suit, death occurs and substitution takes place then the said substitution is sufficient for the purposes of the suit also and in the suit separate substitution application is not at all necessary.
(1) Brijender Singh Vs. Lal Kanshi Ram, AIR 1917 PC 156
(2) Rangubai K.S. Jagtap Vs. S.B.S. Jedhe, AIR 1965 SC 1794
(3) N. Jairam Reddi Vs. Revenue Divisional Officer, AIR 1979 SC 1393
"The third illustration given in AIR 1965 SC 1794 at page 1797 is quote below:
"An appeal was filed against an interlocutory order made in a suit. During the appeal, the defendant died and his legal representatives were brought on record. The appeal was dismissed. The appeal being a continuation or a stage of the suit, order bringing the legal representatives on record would enure for the subsequent stages of the suit. This would be so whether in the appeal, the trial court's order was confirmed, modified or reversed."
This passage was quoted with approval in the judgment of Hon'ble D.A. Desai, J. in N.J. Reddy case of 1979.
The argument of learned counsel for petitioner that appeal is continuation of proceedings of the suit, but the revision is not cannot be accepted. In Shanker Ramchandra Abhyankar Vs. K.D. Bapat, AIR 1970 SC 1 it has been held that revisional jurisdiction is part of appellate jurisdiction.
Accordingly, after substitution in the revision there was even no necessity to file second substitution application in the suit.
There is therefore no merit in the writ petition hence it is dismissed.
Order Date :- 9.7.2013
Ravi
