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Uttarakhand High Court · body

2007 DIGILAW 191 (UTT)

Krishan Bahadur Chand v. Rajendra Datt

2007-04-17

PRAFULLA C.PANT

body2007
Judgment Heard learned counsel for the parties. 2. The appeal (Second Appeal No. 169 of 1980 as registered in Allahabad High Court, which is renumbered as Second Appeal No.107 of 2001) was transferred to this Court under Section 35 of the U.P. Re-organization Act, 2000. In said Section 35, which provides transfer of proceedings from Allahabad High Court to Uttaranchal High Court, words used are 'proceedings pending in the High Court of Allahabad'. Since, the appeal stood abated on 2102-1990, in fact, there was no appeal pending on 09-11-2000, in the matter and the dead proceedings could not have been transferred under Section 35 of the aforesaid Act. 3. This is application No.10898 of 2003 for substitution of legal representatives of the deceased appellant and legal heirs of deceased respondent, moved on behalf of legal representatives of the deceased appellant. 4. From the affidavit filed with the substitution application, it is clear that the defendant / appellant died way back on 23-11-1989, leaving legal heirs Deepak Chand and Sushi / Chand, the present applicants in the substitution application. Paragraph 7 of the affidavit filed by Deepak Chand (one of the applicants) with the aforementioned substitution application, further shows that plaintiff / respondent also died in September 1993, leaving behind his sons namely, Nanda Ballabh, Govind Ballabh, Uma Shanker and Jitendra Prasad. 5. In view of Sub Rule (2) of Rule 31 of Order XXII of the Code of Civil Procedure, 1908 read with its Rule 11 and also read with Article 120 of the Limitation Act, 1963, the appeal stood abated after 90 days of death of the sole appellant i.e. the appeal stood abated on 21-02-1990. The Apex Court in Madan Naik and others Vs. Hansubala Dev; and others; reported in (1983) 3 Supreme Court Cases 15, has held that abatement of a proceeding takes place on its own force by passage of time. No specific order for abatement is envisaged under Order 22. It is only for setting aside of abatement that a specific order is necessary under Order 22 Rule 9 of the Code. 6. The above mentioned substitution application is accompanied with delay condonation application for condoning the delay in moving the substitution application. The delay in moving the substitution application is more than 12 years. It is only for setting aside of abatement that a specific order is necessary under Order 22 Rule 9 of the Code. 6. The above mentioned substitution application is accompanied with delay condonation application for condoning the delay in moving the substitution application. The delay in moving the substitution application is more than 12 years. It is pertinent to mention here that under Article 120 of the Limitation Act, 1963, the period provided for moving substitution application is 90 days, and under Article 121 of said Act, 60 days time is allowed to set aside the abatement of appeal, thereafter. No doubt, Section 5 of the Limitation Act allows the court to condone delay if there is sufficient explanation for not moving the substitution application, within time. In the explanation given by the applicants it is to be seen whether the same is sufficient to explain the delay of more than 12 years, in moving the substitution application? Paragraph 9 of affidavit of applicant Deepak Chand shows that applicants had no knowledge of Second Appeal being filed before the Allahabad High Court. Neither of the two legal representatives was aware of appeal being filed by their father. Had the appellant died soon after filing of appeal, the explanation could have been said to be sufficient. that the sons of the appellant had no knowledge that their father filed an appeal before Allahabad High Court. The appeal was filed in January 1980, and in November 1989 applicants' father, died. It is not the case of the applicants that they were living separately from their father. Address shown by the applicants shows that they were living with their father. As such, the explanation given for not moving the substitution application after 12 years stating that they had no knowledge that their father had filed Second Appear, nine years before his death before the Allahabad High Court, cannot be accepted. 7. For the reasons as discussed above, this Court is of the view that there is no sufficient explanation for long delay of twelve years in moving the substitution application, and for seeking setting aside of the abatement. Therefore, the delay condonation application seeking condonation of delay in setting aside the abatement is rejected. The substitution application No. 10898 of 2003, is also dismissed. Therefore, the delay condonation application seeking condonation of delay in setting aside the abatement is rejected. The substitution application No. 10898 of 2003, is also dismissed. The Registry of this Court is directed to consign the record of the Appeal to the record room, as a closed and abated case.