Allahabad High Court
Pratap And 11 Others vs Umrao (Since Deceased) And 4 Others on 21 May, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
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Neutral Citation No. - 2024:AHC:91672
Court No. - 4
Case :- MATTERS UNDER ARTICLE 227 No. - 558 of 2021
Petitioner :- Pratap And 11 Others
Respondent :- Umrao (Since Deceased) And 4 Others
Counsel for Petitioner :- Abhay Raj Singh,Akanksha Mishra,K.S. Tiwari,Vivek Tiwari
Counsel for Respondent :- Lalit Kumar,Priyanka Kumari
Hon'ble Ajit Kumar,J.
1. Heard Ms. Akanksha Mishra, learned counsel for the petitioner and Sri Lalit Kumar, learned Advocate appearing for contesting respondent.
2. Petitioners before this Court are defendants in the suit and respondents in regular civil appeal filed by the plaintiffs-opposite parties which came to be allowed ex parte on 01.04.2015. Soon thereafter the restoration application was filed in respect of the ex parte order. However, during pendency of the restoration application, one of the appellant-respondents- Umrao died on 17.01.2020 and an application for substitution came to be belatedly moved on 22.09.2020 which was opposed by the plaintiffs-respondents and considering the objections filed by the opposite parties, the substitution application was rejected by the court below. It is this order dated 25.09.2020 which is under challenge before this Court.
3. Counsel for the petitioner submits that the substitution application was not such a time barred one that it should have been dismissed on the ground of delay only. The court ought to have taken pragmatic view in the matter for the simple reason that limitation for filing substitution was available to the petitioner till 16.04.2020 and even if the substitution application could not have been filed within that period, it could have been filed within a further week or two but in the meantime, pandemic Covid-19 hit the nation which resulted in declaration of lockdown at national level. Resultantly, the courts got closed and the people were restrained from coming out of their house. This situation more or less continued for at least one and a half year affecting normal functioning of courts throughout the State and hence the court could have considered the delay condonation application and the explanation offered therein in light of judgment of Hon'ble Supreme Court in Re: Cognizance For Extension of Limitation [Suo Motu Writ Petition (Civil) No. 3 of 2020] dated 23.09.2021.
4. Per contra, it is argued by learned Advocate appearing for the contesting respondents that the petitioner though was earlier aware of the death of plaintiff- Late Umrao as he was duly informed, yet he failed to file substitution application. More so, they failed to file any any misc. application to set aside the abatement and since the abatement is by operation of law, the suit was liable to be taken to have abated.
5. Having heard learned counsel for the respective parties and having perused the record, in my considered view, in such a situation where the parties were restrained from participating in the court proceedings due to pandemic Covid-19, the Court was required to take pragmatic view of the circumstances that prevailed in the nation in general and State in particular and in such circumstances, therefore, the Court ought to have allowed the substitution application for continuation of litigation as right to sue survived with heirs. In so far as the argument advanced by learned counsel appearing for the contesting respondent that there was no abatement application filed for setting aide the abatement, this technical lacuna could have been filled up by moving appropriate application for setting aside the abatement.
6. In such view of the matter, therefore, I consider it appropriate that an opportunity be afforded to the petitioners to move appropriate application for setting aside the abatement and to contest the substitution application on merits afresh. Plaintiff-respondents can have the equal opportunity to file objection afresh to the misc. application if any filed for setting aside the abatement.
7. In the circumstances, the order passed by the court below dated 25.09.2020 dismissing the Misc. Case no.47 of 2018 and dismissing substitution application is hereby set aside. Petitioner is directed to move appropriate application for setting aside the abatement within a period of four weeks from today. The respondents shall have the opportunity to file objection to the application within next two weeks' time and the court below will proceed to decide the substitution application afresh on merits in light of observations made hereinabove. In any case final order shall be passed within a period of six months from the date of production of certified copy of this order.
8. Misc. Case No.47 of 2018 is, accordingly, restored to its original number.
9. With the aforesaid observations and directions, this petition stands disposed of.
Order Date :- 21.5.2024
P Kesari
