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2016 DIGILAW 648 (ALL)

KESARA DEVI v. DISTRICT JUDGE

2016-02-23

PANKAJ MITHAL

body2016
JUDGMENT Hon’ble Pankaj Mithal, J.—Heard Sri S.C. Tripathi, learned counsel for the petitioner and Sri Rajesh Kumar Singh, learned counsel for respondents No. 3 to 10. Respondents No. 1 and 2 are formal parties. 2. The dispute raised in this petition filed under Article 226 of the Constitution of India is with regard to the substitution of heirs of Ratnakar Singh, the sole defendant in the suit which is pending in the Court below. 3. Learned counsel for the petitioner has drawn attention of the Court to the application filed for converting the petition under Article 227 of the Constitution of India. 4. Notwithstanding the above application, as counsel for the parties agree for final disposal of this petition within the limited scope of Article 227 of the Constitution of India, I proceed to consider the matter on merits finally. 5. One Abhimanyu Singh as the sole plaintiff instituted Original Suit No. 612 of 2004 for a decree of permanent injunction against Ratnakar Singh, the sole defendant. After institution of the above suit, the plaintiff and the defendant both died on same date i.e. 3rd April, 2006. One of the heirs of the plaintiff Pravesh Singh filed an application for substituting the heirs and legal representatives of the deceased defendant alongwith an application for condonation of delay in filing the substitution application. The above applications have been allowed and the revision against the same has been dismissed. 6. In the above circumstances, Kesara Devi widow of the aforesaid deceased defendant has preferred this petition challenging the above two orders permitting substitution of the heirs and legal representatives of the deceased defendant in the suit contending that as the deceased defendant had left a Will dated 4.6.2004 in her favour, she alone was entitle to be substituted to the exclusion of all others. 7. The record reveals that the Court had permitted substitution of not only of the sons and the other heirs of the deceased defendant but also of the petitioner, the widow of the deceased. Therefore, since petitioner has also been substituted in place of her deceased husband the substitution of other heirs is immaterial which does not cause any prejudice to her. 8. The argument that as the deceased-defendant had left a Will bequeathing all his properties to the petitioner alone, the substitution of other heirs of the deceased is not justified is of no substance. 8. The argument that as the deceased-defendant had left a Will bequeathing all his properties to the petitioner alone, the substitution of other heirs of the deceased is not justified is of no substance. The substitution of other heirs of the deceased-defendant may have resulted in the addition of unnecessary parties but their inclusion cannot be regarded as improper. On the death of defendant all his heirs are entitle to participate in the suit irrespective of any private arrangement amongst them. The other persons permitted to be substituted are admittedly the sons and other legal heirs of the deceased defendants. Even if some other heirs of the deceased/defendant agree that they have no concern with the suit property nonetheless their substitution would in no way harm the cause of the petitioner who has been substituted as the widow of the deceased so as to contest the suit on merits. The heirs of the deceased-defendant who may not have any interest in the property of the deceased-defendant may or may not contest the suit but their substitution cannot be held to be unwarranted in law. 9. The other argument of learned counsel for the petitioner is that Pravesh Singh could not have applied for substituting the heirs and legal representatives of the deceased defendant as he himself was not added as a party to the suit either as a plaintiff or his heir. 10. There is no dispute that the sole plaintiff and the sole defendant in the suit had died on the same date. In the circumstances, the heirs and legal representatives of both the sides were to be substituted. The responsibility of substituting the heirs of both the parties rested upon the plaintiff and in his absence upon his heirs and legal representatives. In the ordinary course the heir of plaintiff was supposed to get himself substituted first before applying for the substitution of the heirs and legal representative of the deceased defendant. Nonetheless, the question as to who ought to have been substituted first is immaterial in the instant case as Pravesh Singh is the heir and legal representative of the deceased-plaintiff who has admittedly been substituted vide order dated 29.11.2007. Nonetheless, the question as to who ought to have been substituted first is immaterial in the instant case as Pravesh Singh is the heir and legal representative of the deceased-plaintiff who has admittedly been substituted vide order dated 29.11.2007. Therefore, the irregularity with regard to filing of application for substitution of the heirs and legal representatives of the deceased-defendant stand cured and does not affects the merits of the application for substitution of the heirs and legal representatives of the deceased-defendant. 11. Even otherwise, under the facts and circumstances of the case the substitution of either of the parties which has been permitted by the impugned order is not causing any prejudice to the petitioner warranting exercise of discretionary or supervisory jurisdiction. 12. The last submission is that the Court of first instance materially erred in allowing the delay condonation application and the substitution application simultaneously. In support of the argument reliance has been placed upon upon Jais Lal v. Deputy Director of Consolidation and others, 2014(1) ADJ 248 . 13. In the aforesaid case Learned Single Judge of this Court has opined that unless delay is condoned, the appeal or revision would not be competent and cannot be decided on merits. It has further been observed that in the event delay is condoned, the appeal or revision can be decided on merits but not prior to one month from the date of the order passed on the application for delay condonation. 14. It is true that an appeal or revision would not be competent and mature for hearing on merits unless delay in filing them is condoned but there is no prohibition in law to condone the delay and to decide the revision or appeal on merits simultaneously. At least no such provision of law has been shown to me except citing the above decision. 15. The usual practice is to first consider the delay condonation application and then to consider the matter on merits. If the Court is satisfied with the explanation of delay and makes upon mind to condone it, it generally passes a composite order condoning the delay and on the merits of the revision or appeal, as the case may be. Thus, in practice both can be considered simultaneously in the above situation. It is not an absolute rule that there should be some time gap between the two. Thus, in practice both can be considered simultaneously in the above situation. It is not an absolute rule that there should be some time gap between the two. This rule of practice applies more vigorously in dealing with delay condonation applications accompanying interlocutory applications in comparison to the delay condonation applications accompanying appeals and revisions. 16. The above cited authority is based upon an earlier decision Prabhu and another v. Dy. Director of Consolidation and others, 2013 (118) RD 48, which is in connection with the time barred revision in proceedings under U.P. Consolidation of Holdings Act, 1953. The aforesaid decision lays down that (i) When the statute provides limitation for approaching the Court and a person approaches the Court after the expiry of the period of limitation, then he has to approach the Court alongwith an application under Section 5 of the Limitation Act praying extension of period of limitation or to condone the delay in approaching the Court; (ii) Once the application under Section 5 of the Limitation Act is filed and unless the delay is condoned, no order can be passed on merit; and (iii) The delay cannot be condoned without having the version of other side and for that, other side is required to be noticed and heard. Thus, it was held that the Deputy Director of Consolidation erred in deciding the revision on merits without condoning the delay in its filing. 17. There are no two opinions on the propositions of law laid down above. The aforesaid conditions cannot be applied with the same force to interlocutory applications or in cases where the appeal or revision is not being decided on merits. The interlocutory applications stand on a much lower level than the appeals or revisions. Therefore, they can be considered on merits immediately after condoning the delay in filing such applications by a composite order provided parties are given proper opportunity of hearing instead of waiting for a month as observed in Jais Lal (Supra) in respect of hearing of revisions and appeals. Moreover none of the conditions as aforesaid stand violated in the present case. 18. In view of the above, the condonation of the delay and the substitution of the petitioner or the other heirs of the deceased-defendant is not at all illegal which may be disturbed by this Court either under Article 226 or 227 of the Constitution of India. 19. 18. In view of the above, the condonation of the delay and the substitution of the petitioner or the other heirs of the deceased-defendant is not at all illegal which may be disturbed by this Court either under Article 226 or 227 of the Constitution of India. 19. The petition lacs merit and is dismissed.