Smt.Shyam Raji vs D.D.C.Bahraich /Balrampur And ...
2013 Latest Caselaw 5639 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 21
 
Case :- CONSOLIDATION No. - 727 of 2002
 
Petitioner :- Smt.Shyam Raji
 
Respondent :- D.D.C.Bahraich /Balrampur And Another
 
Counsel for Petitioner :- Mohd.Arif Khan,Annand Kumar,Ayodhya Pd Singh
 
Counsel for Respondent :- C.S.C.,H.O. Singh,R.K. Saini,R.P. Lal
 

 
Hon'ble Sibghat Ullah Khan,J.

It is utterly confusing that for substitution of the legal representatives of petitioner three applications have been filed and each application is supported by separate affidavit. One application is for substitution, the other is for setting aside the abatement (as the substitution application has been filed after 150 days of death) and the third application is for condonation of delay. In writ petitions there is absolutely no  requirement of filing application for setting aside abatement for the reason that as held by the Supreme Court in AIR 1996 SC 1092, Puran Singh vs. State of Punjab there is no question of automatic abatement of writ proceedings. Part of para 10 of the said authority is quoted below:-

"As such even if it is held that Order 22 of the Code is not applicable to writ proceedings or writ appeals, it does not mean that the petitioner or the appellant in such writ petition or writ appeal can ignore the death of the respondent if the right to pursue remedy even after death of the respondent survives. After the death of the respondent, it is incumbent on the part of the petitioner or the appellant to substitute the heirs of such respondent within a reasonable time. For purpose of holding as to what shall be a reasonable time, the High Court may take note of the period prescribed under Article 120 of the Limitation Act for substituting the heirs of the deceased defendant or the respondent. However, there is no question of automatic abatement of the writ proceedings. Even if an application is filed beyond 90 days of the death of such respondent, the court can take into consideration the facts and circumstances of a particular case for purpose of condoning the delay in filing the application for substitution of the legal representative." (underlining supplied)

Accordingly if after the death of a party in a writ petition substitution application is filed after 90 days then prayer for condonation of delay is also to be made.  Either both these prayers may be made in the same application by paying court fees of Rs.10/- thereupon or separate applications may be filed for substitution and for condonation of delay and both may be supported by one affidavit.  Unnecessary affidavits and applications amount to wastage of paper and unnecessarily make the file voluminous.

Registrar and Registrar listing both are directed to ensure that in future office will not refuse to accept any substitution application if prayer for substitution and condonation of delay is made in the same application (after affixing court fees stamp of Rs.10/-) or substitution application and delay condonation applications are supported by one affidavit in writ petitions. Similarly in appeals all the three applications (substitution, setting aside of abatement and delay condonation) may be supported by one affidavit.

Substitution application to bring on record legal representatives of sole petitioner is allowed after condonation of delay in applying for the same.

Order Date :- 10.9.2013

Ravi