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2006 DIGILAW 1724 (ALL)

KAILASH CHANDRA v. BABOO RAM

2006-07-19

S.P.MEHROTRA

body2006
S. P. MEHROTRA, J. Civil Misc. (Substitution) Application No. 61351 of 2004 (dated 1. 4. 2004) has been filed on behalf of the proposed heirs and legal representatives of Kailash Chandra (plaintiff-appellant) for being substi tuted in place of the said Kailash Chandra (plaintiff-appellant), who is re ported to have expired. 2. By the order dated 1st March, 2006, notices were directed to be issued on the aforementioned substitution application to the proposed heirs and legal representatives of Baboo Ram (defendant- respondent), as mentioned in Civil Misc. Application No. 5046 of 1990 (dated 4. 9. 1990 ). 3. The learned Counsel for the applicants, in the aforementioned substitu tion application dated 1. 4. 2004, was granted four weeks time for taking requi site steps for issuance of notices, as mentioned above. 4. The office report dated 18th July, 2006 shows that requisite steps for is suance of notices on the aforementioned substitution application dated 1. 4. 2004, pursuant to the said order dated 1st March, 2006, have not been taken. 5. The case has accordingly been listed today under Chapter XII, Rule 4 of the Rules of the Court. 6. The case has been taken up in the revised list. The learned Counsel for the applicants, in the aforementioned substitution application dated 1. 4. 2004, is not present. 7. Even though the case is listed today under Chapter XII, Rule 4 of the Rules of the Court, the requisite steps have not been taken by the learned Counsel for the applicants in the aforementioned substitution application dated 1. 4. 2004. 8. In the circumstances, the Court has no option but to dismiss the afore mentioned substitution application dated 1. 4. 2004 for want of prosecution under Chapter XII, Rule 4 of the Rules of the Court. 9. The aforementioned substitution application dated 1. 4. 2004 is, accord ingly, dismissed for want of prosecution. 10. The aforementioned substitution application dated 1. 4. 2004, as noted above, has been filed consequent to the death of Kailash Chandra (plaintiff-appellant ). 11. In view of the dismissal of the aforementioned substitution application dated 1. 4. 2004 for want of prosecution, the second appeal at the instance of the said Kailash Chandra (plaintiff-appellant) stands abated. 12. The said Kailash Chandra was the sole plaintiff-appellant. Therefore, the second appeal stands dismissed as having abated. Appeal Dismissed. Grandhasala are different entities. 11. In view of the dismissal of the aforementioned substitution application dated 1. 4. 2004 for want of prosecution, the second appeal at the instance of the said Kailash Chandra (plaintiff-appellant) stands abated. 12. The said Kailash Chandra was the sole plaintiff-appellant. Therefore, the second appeal stands dismissed as having abated. Appeal Dismissed. Grandhasala are different entities. We are of the opinion that even if the High Court was of the opinion that the finding of fact of the First Appellate Court on this point was based on no evidence or was perverse, at the most the High Court could have remitted the matter to the First Appellate Court for a fresh decision, in accordance with law, but it could not itself acted as a First Appellate Court under section 96 of the Civil Procedure Code, which it appears to have done. 6. It may be mentioned that the First Appellate Court has based its find ing that the Yuva Samithi is still functioning in a different name on the basis of Exhibits B-1 to B-7. In our opinion, it was incumbent upon the High Court, if it wanted to interfere with this finding to examine Exhibits B-1 to B-7 but it does not seem to have done so. Hence, we direct the High Court to reconsider the question whether the finding of the First Appellate Court that the Yuva Samithi has not become defunct and it is functioning in a different name is based on no evidence or is perverse. The High Court shall specifically deal with Exhibits B-1 to B-7 and other relevant material in support of the said finding of the First Appellate Court. All questions of law are left open to the High Court. The impugned judgment of the High Court is set aside and the case is remanded to the High Court to give a fresh decision in accordance with law and in the light of the observations made above. We hope and trust that the High Court will decide the appeal expeditiously, since the matter has been pending for long. 7. If the High Court finds that the findings of the First Appellate Court that the Yuva Samithi is still functioning is based on no evidence or is perverse then it should remand the matter to the First Appellate Court for a re consideration of this question. The appeal is allowed. 7. If the High Court finds that the findings of the First Appellate Court that the Yuva Samithi is still functioning is based on no evidence or is perverse then it should remand the matter to the First Appellate Court for a re consideration of this question. The appeal is allowed. There shall be no order as to costs. Appeal Allowed. .