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1990 DIGILAW 841 (ALL)

Sharif Ahmad v. IXth Additional District Judge

1990-09-06

R.B.MEHROTRA

body1990
JUDGMENT R. B. Mehrotra, J. - By means of the present writ petition under Article 226 of the Constitution, the petitioner has challenged the order of the IX Addl. District Judge, Ghaziabad, dated 27.1.1990 passed in S.C.C.R. No. 128 of 1988, Sharif Ahmad v. Karan Singh dismissing petitioner's application for setting aside an order of abatement of revision passed in the case on the ground that respondent No. 1/2 had died on 27.3.1989 and an application was moved on 22.5.1989 for taking steps for substituting the deceased respondent. The time was granted till 31.5.1989. Then on 31.5.1989, the petitioner was permitted to takes steps for substituting the respondent within the period permissible by law. The petitioner did not comply with the aforesaid order and moved an application on 8.1.1990 for substituting the heirs of defendant-respondent No. 1/2. The revisional court has taken the view that the petitioner has not furnished any explanation for this undue delay in taking steps for substituting the deceased,respondent. As such on the said basis the application for setting aside the abatement of the revision was dismissed by the impugned order. 2. I have heard the learned counsel for both the parties. 3. The counsel for the petitioner has contended that the revisional court has committed an error on the face of the record by not looking into the contents of the application which the petitioner moved for setting aside the abatement of the revision. The petitioner's counsel submitted that detailed facts were stated in his application supported by an affidavit wherein the petitioner explained as to why he could not take steps for substituting the deceased respondent within the time allowed by the court. The said application is a part of the record of the writ petition and I have perused the same. The petitioner has given accurate date-wise details for his inability to comply with the court's order of substituting the heirs of deceased respondent in his application wherein he has stated that the petitioner was ill from 13.6.1989 to 12.7.1989 and when he, on 13.7.1989, approached his counsel for taking steps, then the petitioner was told that as the lawyers arc on strike, it is possible to move the application for bringing the heirs on records only when the court reopens. It is again on 20.7.1989, the petitioner went to his counsel on which date again the petitioner was told that the lawyers' strike is continuing, as such the application for bringing on record the heirs cannot be moved. Thereafter again on 3.8.1989, the petitioner enquired from his lawyer and was informed that the strike is continuing. Then the petitioner went to make similar enquiry on 11.10.1989 then the petitioner was told that the lawyers' strike is continuing and only when the lawyers called off their strike, it is possible for the petitioner to move the application for bringing on record the heirs of deceased respondent. Then on 10.11.1989, the petitioner met his counsel and was informed that the lawyers' strike is continuing. The petitioner was also told that since the strike is indefinite, the petitioner's counsel will inform him when the court re-opens. However, the lawyer of the petitioner forgot to inform the petitioner when the strike was palled off and the petitioner went to make queries regarding the re-opening of the court and the petitioner was informed that the petitioner's lawyer has gone to Calcutta and will come back on 3.1.1990 and thereafter the lawyer of the petitioner fell ill from 3.1.1990 to 11.1.1990 and did not attend the court. The petitioner has substituted the heirs of the deceased respondent on 12.1.1990 and has prayed that the order passed by the court on 8.1.1990 dismissing the petitioner's revision as having abated may be recalled. 4. In the impugned order the revisional court has not discussed any of the circumstances detailed by the petitioner in his application. There is nothing on record to show that the statement made in the petitioner's application was incorrect, neither it is stated in the impugned order. The impugned order has been passed without looking into the details given by the petitioner in his application for setting aside the order of abatement. The order shows complete non-application of mind and the revisional court has patently committed an error in dismissing the petitioner's application for recalling the order of abatement passed in the revision. 5. I have heard the counsel for the respondents. He was not able to controvert the facts stated in the petitioner's application regarding his inability to move the substitution application mainly due to lawyers' strike. 5. I have heard the counsel for the respondents. He was not able to controvert the facts stated in the petitioner's application regarding his inability to move the substitution application mainly due to lawyers' strike. It is a case where the litigant is being made to suffer on account of lawyers' strike and the revisional court has just not even mentioned the fact of lawyers' strike in his order and has punished the petitioner for no fault of his. I am also satisfied that the petitioner has fully explained the delay in bringing on record the heirs of deceased respondent and order of abatement of the revision passed on 8.1.1990 by the revisional court deserves to be set aside. 6. The learned counsel for the respondents however submitted that the petitioner is not paying rent of the premises in dispute and is taking advantage of the pendency of the litigation. The counsel for the petitioner has controverted this position. It is being made clear that if the petitioner had not deposited rent up to date, the petitioner will do the same by 15th October, 1990 and will deposit the entire rent due to the respondent landlords by 31.8.1990. These deposits will be subject to the adjustment of the rent already paid by the petitioner. The petitioner is entitled for the relief from this Court only on his acting fairly. As such it is necessary for the petitioner to deposit the rent due to the respondent landlords, as stated above, till 31.8.1990. The respondent landlords will be at liberty to withdraw the amount so deposited. 7. With the above observations, I allow the writ petition, quash the order of the IX Addl. District judge, dated 8.1.1990 dismissing the petitioner's revision as having abated and order, dated 27.1.1990 rejecting the petitioner's application for setting aside abatement of the revision. The heirs of deceased-respondent have been brought on record. The revision will be heard and decided after hearing the counsel for the parties, within a period of six months from the date any of the parties presents a certified copy of this order before the court concerned. In case the petitioner fails to deposit the rent till 31.8.1990,. as indicated above, this writ petition shall stand dismissed.