Allahabad High Court
Satyadev Sharma vs State Of U.P. And 6 Others on 3 May, 2023
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Reserved On:28.4.2023
Delivered On: 3.5.2023
Court No. - 18
Case :- WRIT - B No. - 2569 of 2022
Petitioner :- Satyadev Sharma
Respondent :- State Of U.P. And 6 Others
Counsel for Petitioner :- Sanjay Kumar Dubey
Counsel for Respondent :- C.S.C,Rajesh Pathik
Hon'ble Chandra Kumar Rai,J.
In Re: Civil Misc. Amendment Application No.5 of 2023 & Civil Misc. Application No.4 of 2023
1. Heard Mr. Ashwani Kumar Mishra, Advocate holding brief of Mr. Sanjay Kumar Dubey, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Mr. Rajesh Pathik, learned counsel for respondent nos.4, 5 & 6.
2. Civil Misc. Amendment Application No.5 of 2023 has been filed on behalf of the petitioner with the prayer to incorporate the amendment by adding the word "since died" after the name of respondent no.3 and permit the counsel for the applicant/ petitioner to add after respondent no.7, the name of Smt.Brijlata widow of Pankaj Kumar, Kumari Vanshika (Minor) & Parniti (Minor) daughters of Late Panjak Kumar as well as Lakshak (Minor) son of Late Pankaj Kumar under the guardianship of their mother Smt. Brijlata as respondent nos.8 to 11.
3. Civil Misc. Application No.4 of 2023 has been filed by counsel for the contesting respondents for dismissing the writ petition as not maintainable on account of fact that writ petition has been filed against the dead person, namely, Pankaj Kumar i.e. respondent no.3.
4. In the affidavit filed in support of the amendment application no.5 of 2023, it has been stated that vide impugned order of Deputy Director of Consolidation dated 6.7.2022, revision filed by Pankaj Kumar and Banwari Lal were allowed setting aside the orders dated 13.12.1982 & 6.2.2019 as well as remanding the matter to the Court of Consolidation Officer to decide the dispute afresh. There was no substitution application by revisionist in the pending revision with respect to Pankaj Kumar, accordingly, petitioner filed the writ petition impleading the Pankaj Kumar and Banwari Lal, real brothers, as contesting respondent nos.3 & 4. It is also mentioned in the affidavit that since the petitioner came to know through the application filed on behalf of the respondents that respondent no.3- Pankaj Kumar has died accordingly the instant application to amend the array of the parties has been filed. Counsel for the respondents has filed counter affidavit to the amendment application stating that amendment application is not maintainable and is liable to be rejected. It is also mentioned in the counter affidavit that Pankaj Kumar has expired on 16.10.2019 but petitioner has filed the instant writ petition in the year 2022 without impleading the heirs of respondent no.3, as such, the writ petition is not maintainable. It is also mentioned that the amendment application filed by the petitioner is also not maintainable, as such, the amendment application is liable to be rejected and the writ petition is also liable to be dismissed.
5. Learned counsel for the respondents has placed reliance upon the judgment reported in AIR 1978 MADRAS 294, State Trading Corporation of India Limited Vs. K.V. Vaidyalingam and Others. Learned counsel for the respondents on the basis of judgment of Madras High Court submitted that amendment application filed by the petitioner to add the legal heirs of deceased respondent no.3 in the writ petition as respondent nos.8 to 11 is not maintainable and is liable to be rejected. He further submitted that the writ petition is also liable to be dismissed as dead person has been impleaded as respondent no.3.
6. I have considered the averment made in the aforementioned applications as well as argument advanced by learned counsel for the parties.
7. Respondent no.3- Pankaj Kumar and Respondent no.4 Banwari Lal are real brothers. Pankaj Kumar has died during pendency of the revision, under Section 48 of Uttar Pradesh Consolidation of Holdings Act, 1953 before the Deputy Director of Consolidation but on behalf of the heirs of Pankaj Kumar or on behalf of Banwari Lal, no application to substitute the heirs of Pankaj Kumar has been filed during pendency of the revision, accordingly, Pankaj Kumar and Banwari Lal were impleaded in the writ petition as respondent nos.3 & 4 to the writ petition. Petitioners have filed the instant amendment application to amend the array of the parties in the writ petition on the basis of Misc. Application No.4 of 2023 filed by counsel for contesting respondent. The provisions of Civil Procedure Code are not applicable in the proceeding arising out of U.P.C.H. Act although the principles are applicable so that the heirs of deceased may be substituted/impleaded in the pending proceeding.
8. Since, there was no substitution in the revision before the Deputy Director of Consolidation, hence deceased Pankaj Kumar was impleaded in the writ petition as he was revisionist in the revision under Section 48 of U.P.C.H. Act filed by Pankaj Kumar and Banwari Lal.
9. It is also material that real brother of Pankaj Kumar, namely, Banwari Lal is already on record of the writ petition as respondent no.4, as such, cause of action will survive and there is no difficulty in allowing the amendment application as Pankaj Kumar has not died during pendency of the writ petition, the instant application for amendment to amend the array of the parties by mentioning the word "since deceased" before the name of Pankaj Kumar and add the legal heirs of Pankaj Kumar as respondent nos.8 to 11 is in accordance with law.
10. It is also material that respondent no.3 Pankaj Kumar has not died during pendency of the writ petition as such substitution application will not be maintainable.
11. The argument advanced by learned counsel for the respondents is misconceived.
12. The case law cited by learned counsel for the respondents is not applicable in the present matter as dispute in the instant present matter relates to the proceeding of consolidation under U.P.C.H. Act while case law relates to civil dispute under Code of Civil Procedure.
13. The amendment application no.5 of 2023 is accordingly, allowed.
14. The Misc. Application No.4 of 2023 is hereby rejected.
15. Let the word deceased be mentioned against the name of respondent no.3 in the array of the parties and the legal heirs of respondent no.3 be added as respondent nos.8 to 11 in the array of the parties of the writ petition.
16. List this writ petition for disposal on 27.7.2023 in the additional cause list.
Order Date :-3.5.2023
Rameez
