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Allahabad High Court · body

2018 DIGILAW 307 (ALL)

Nav Deep Das v. Nitya Nand Das (Deceased)

2018-02-05

ANJANI KUMAR MISHRA

body2018
JUDGMENT : 1. Cause shown for the delay in filing this revision is found to be sufficient. Delay is condoned. 2. The office shall allot a regular number of this revision before a certified copy of this order is issued. 3. Heard learned counsel for the parties on the merits of the revision. 4. This revision, has been filed by the defendant challenging an order dated 03.02.2016 whereby an application filed by the opposite parties for their substitution in place of deceased plaintiff, has been allowed. 5. Counsel for the revisionist challenges this order on the ground that it was a second substitution application. Although it was belated, it was not accompanied by an application under Section 5 of the Limitation Act for condonation of delay. Both grounds vitiate the impugned order and it is liable to be set aside. 6. The submission of revisionist is that on the death of plaintiff on 06.03.2010 a substitution application was filed on 08.05.2010 by the contesting opposite parties, claiming to be the wife and son of the deceased plaintiff. 7. The application was objected to by the revisionist on the ground that persons seeking substitution were neither the wife nor son of the deceased plaintiff. 8. Consequently, an amendment application was filed by the opposite parties on 04.07.2016 claiming that they were Shishya and Shishiya of the deceased and that the averment that they were son and wife was an inadvertent error. 9. It appears that the trial court vide order dated 08.09.2015 dismissed the substitution application granting liberty to the opposite parties in this revision, to file a fresh substitution application. It is this subsequent substitution application which has been allowed by the order impugned. 10. Counsel for the respondent has supported the impugned order. 11. Upon consideration of the submissions made by counsel for the parties and upon a perusal of the record, it transpires that the substitution application which has been allowed, was filed, consequent to an order dated 08.09.2015 granting liberty for filing such an application. The order dated 08.09.2015 has not been challenged by the revisionist earlier, or even by means of this revision. Therefore, once the substitution application was filed on account of the liberty granted by the court, the same cannot be said to be a second substitution application, especially when the order granting liberty was never subjected to challenge. 12. The order dated 08.09.2015 has not been challenged by the revisionist earlier, or even by means of this revision. Therefore, once the substitution application was filed on account of the liberty granted by the court, the same cannot be said to be a second substitution application, especially when the order granting liberty was never subjected to challenge. 12. It also appears that the earlier substitution application which had been filed within time, but was rejected on technical grounds with liberty to file the same afresh. The same, therefore, cannot said to be belated. Therefore, even if it was not accompanied by an application for condonation of delay and no order has been passed condoning the delay, the same in my considered opinion does not vitiate the impugned order. 13. The issue as to whether or not the opposite parties in fact, are the heirs and successor of the deceased plaintiff, may, if necessity arises, be considered in the pending suit because it is settled law that an order of substitution is only for the purposes of prosecuting the litigation and does not necessarily determine the title of the party substituted. 14. In view of the foregoing discussion, I do not find any illegality in the order impugned that would warrant interference. The said order also does not suffer from any jurisdictional error. 15. The revision is accordingly dismissed.