Mohd. Anees vs A.D.J. 5Th Lakhimpur Kheri And 12 ...
2022 Latest Caselaw 1577 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 17
 

 
Case :- WRIT - C No. - 1000144 of 2003
 

 
Petitioner :- Mohd. Anees
 
Respondent :- A.D.J. 5th Lakhimpur Kheri And 12 Ors.
 
Counsel for Petitioner :- A.R. Masoodi,Mohiuddin Khan
 
Counsel for Respondent :- C.S.C.,Rupesh Kumar Gupta,Uttam Kumar Awasthi,Z.A.Siddiqui
 

 
Hon'ble Shree Prakash Singh,J.

Case called out in the revised list. Learned counsel for the petitioner is present. None present on behalf of the respondent. The matter pertains to the year 2003. The Court proceeded to hear the matter in the aforesaid circumstances.

By means of the instant writ petition, the petitioner has challenged the judgement and order dated 18.12.2002 passed by Additional District Judge(Vth), District Lakhimpur Kheri in Misc. Appeal No. 103 of 2002 as well as judgment and order dated 06.08.2002 passed by Court of Additional Civil Judge, Junior Division, Mohammdi, District Kheri in Regular Suit No. 61 of 1988.

Learned counsel for the petitioner submits that application of the petitioner for substitution of legal heirs in place of defandant no. 1 Late Shaukat Ali was rejected. He submits that the aforesaid suit was running for a dispute with regard ancestral property of the petitioner of a house situated in Mohalla Sarrayan, District Lakhimpur. In the year 1988 a suit for permanent injunction was filed against Late Shaukat Ali which was registered as regular suit no. 61 of 1988. The said suit was filed when late Shaukat Ali had attempted to disturb the peaceful possession of the petitioner over the aforesaid land. The Commissioner report was also called by the trial court and the issue was framed. He submits that during the pendency of the aforesaid suit one Naseem Ahmad filed an application for implementing and was allowed to be impleaded as defandant no. 2, who died on 16.03.1998 and consequent the legal heirs of the late Naseem Ahmad were substituted as defandants. He also added that defendant no. 1 late Shaukat Ali died on 13.08.2001. The information as regards the death of late Shaukat Ali was placed before the trial court on 03.09.2000. After the aforesaid information the substitution application was filed for substituting the legal heirs of Late Shaukat Ali before the trial court on 19.11.2001 along with application for condonation of delay. The trial court while adjudicating upon the aforesaid application, rejected the application of the petitioner on the ground that the same is delayed by 90 days and the trial court rejected the application. Later on, against the order dated 06.08.2002 passed by trial court an appeal was filed and the said appeal was also dismissed on the same premises as was recorded by the trial court.

Learned counsel for the petitioner submits that the knowledge of death of Late Shaukat Ali was placed on record on 03.09.2001 and as such the aforesaid period from the death of the Late Shaukat Ali up to the information placed before the court on 03.09.2001 should have been excluded while considering the application for substitution along with delay condonation application. He submits that infact the knowledge with regard to the death of Late Shaukat Ali came to the petitioner only when the said information was placed before the court on 03.09.2001. He also added that Order 22 Rule 4 provides a procedure in case where death of one of several defendants or sole defendants are there. Learned counsel has also contended that the order passed by the trial court as well as by the appellate court suffers from illegality.

Further application under Order 22 rule 4 (5) read with order 22 rule 9 is liable to be treated and to be considered by the trial court as well as the appellate court but the same has not been seen in the instant case. In such view of the contention he submits that the order passed by the trial court as well as appellate court is liable to be set aside.

In support of his contention, learned counsel for the petitioner has placed reliance on the judgments reported in (2011 All. C.J. 608) Smt. Shanti Devi vs. The Additional District Judge, Etah and others and has referred para 4 of the said judgement which is extracted as under:-

"In my opinion both the Courts below have taken extremely technical views. In substitution matters such strict view is not warranted. Even if substitution application was filed beyond 90 days still the delay was of less than a month. Photostat copy of the death certificate issued by the hospital had been filed. In substitution matters in a suit, evidence in the form of affidavit is admissible. The sons of the original plaintiff were not saying anything against the Will. Subsequent orders passed by Tehsil authorities could not be treated to be final in respect of date of death. Moreover, it does not appear that question of date of death was directly and substantially involved before the Tehsil authorities. Revisional Court rightly held that substitution application could be treated to contain the prayer for setting aside the abatement also as it was admittedly filed within 150 days from date of death. However, Revisional Court should not have dismissed the revision on the ground that Misc. appeal ought to have been filed. Revisional jurisdiction is part of appellate jurisdiction and scope of interference in revision is narrower than in appeals. On the finding recorded by the lower Appellate Court the Trial Court committed error of jurisdiction by refusing to allow the substitution application after setting aside the abatement if necessary."

He submits that the court has come to the conclusion that the court below should not take extreme technical view in case there is delay in filing application for substitution. In case before Apex Court also the application for substitution was filed beyond 90 days and the delay was condoned.

Further he has also placed reliance reliance on the judgments reported in 2012 (30) LCD 1262) Hari Lal Chaurasia (Dead) and others vs. Smt. Krishna Devi and others) has referred para 9 of the said judgement which is extracted as under:-

"9. It appears that during the pendency of 1st suit, Munni Lal died and his daughter Smt. Krishna Devi and son Sri Bhagwati Prasad were substituted. In the appeal also, they were made party. On the facts and circumstances, the Court is of the view that if respondent No. 1 died in the year 2004, the pleader of respondent No. 1 should have informed the Court about her death but it is not the case of any party that the pleader has informed about the death of respondent No. 1. In the circumstances, there was no occasion with the appellants to know about the death of respondent No. 1 and to move the substitution application. During the pendency of the present appeal, when the appellants came to know through Counsel of respondents that respondent No. 1 has died, steps have been taken and the substitution application has been filed. The Court is of the view that at the stage of second appeal also, the heirs of the party who died during the pendency of suit or appeal can be made as party and their names can also be substituted. It is settled law that in the cases of substitution and in setting aside the abatement, a liberal view should be taken to avoid the defeat of justice."

The aforesaid proposition of law has again been reiterated in the instant case also and the court has held that as hyper-technical view in case of considering the application for substitution should be avoided. He has also placed reliance in the case reported in (2011 All. C.J. 781) Raghuveer Prasad and another vs. Shri Vishnu Dutt and has placed reliance on para 14 and the is same is extracted as under:-

"The court is also conscious that sometimes a good cause may be lost or defeated on account of technicalities. Therefore to avoid such knockouts on technicalities and in view of legal position aforesaid, I am satisfied with the explanation for delay in seeking substitution of the heirs and legal representatives of the deceased defendant-respondent. Accordingly, the same is liable to be condoned and the abatement has to be set aside to enable substitution to be made."

Considering the several authorities the court has again reiterated that while considering the application for delay in the substitution cases the technical views should be deprecated.

Having heard learned counsel for the parties and after going through record, it is clear that there were delay about 90 days and the same was explained by the petitioner by filing the application of substitution along with the delay condonation application the trial court on hyper-technical and hypothetical ground passed the order as is evident that the court has taken the cognizance that since the house of the present petitioner is in front of the house of the respondent and as such he should have knowledge about the death of the defendant. Further as per several authorities up to the apex court it is settled that hyper technical view should not be taken by the trial court while deciding the application for substitution rather the court has to make endeavor to decide cases on merits.

Considering the arguments of the parties and the settled proposition of law, the judgment and order dated 18.12.2002 and 06.08.2002 are hereby set aside. The trial court is directed to proceed on hearing on the application for substitution filed by the petitioner, in the light of the judgment reported in Smt.Shanti Devi (supra) and Raghuveer Prasad (supra) within period of 60 days from the date, a certified copy is produced before it.

With the aforesaid observation the writ petition is disposed of.

Order Date :- 27.4.2022

Ujjawal