Harsh Vardhan vs Surendra Kumar Gupta & Ors

Lok Pal Singh, J

Petitioner has invoked the extra-ordinary jurisdiction of this Court under Article 227 of The Constitution of India seeking a writ of certiorari quashing the impugned order dated 24.09.2011 passed by Additional District Judge/F.T.C. 3rd Dehradun.

Facts leading to filing of present writ petition are that a civil suit no.436 of 2004 was filed by the predecessor of petitioner, namely, Smt. Sumitra Devi, in the court of Civil Judge (Senior Division), Dehradun against the respondents/defendants. The trial court, vide its order dated 28.08.2004, allowed the interim injunction application paper no.6C moved by the plaintiff. Being aggrieved, defendants/respondents preferred an appeal being misc. civil appeal no.107 of 2004. During the pendency of appeal, plaintiff Smt. Sumitra Devi expired on 22.10.2010. An intimation to this effect was given to the Court on 26.10.2010 by the counsel for the respondent through application paper no.73-C. On 15.7.2011, appellants/defendants moved an application for setting aside abatement stating therein that the appellants came to know about the death of sole respondent/plaintiff only after the record of the lower court was summoned. Appellants also moved substitution application and prayed that if there is any delay in filing the application, the same may kindly be condoned. On 20.09.2011, petitioner filed objections against the substitution application stating that the sole respondent expired on 22.10.2010 which was informed in the court and was within full knowledge of the appellant; that the appeal has abated as the period of 90 days to move substitution application lapsed on 20.1.2011 and further period of 60 days for setting aside the said abatement too lapsed on 21.3.2011; the information of death before filing in the court was tendered to the counsel for the appellant, who refused to accept the application. After hearing the parties and upon perusal of record, Additional District Judge/3rd F.T.C., Dehradun, vide order dated 24.09.2011, allowed the substitution application and set aside the abatement on the cost of Rs.500/-.

Learned Senior Counsel appearing for the petitioner would submit that the order impugned passed by the lower appellate court is totally illegal and erroneous; the grounds taken by respondents/appellants in the application for setting aside abatement and substitution application were neither sufficient nor bonafide inasmuch as inspite of knowledge of death of the plaintiff Smt. Sumitra Devi on 26.10.2010 the respondents/appellants did not take any steps to substitute the legal heirs of the plaintiff within the limitation period. To buttress his submissions, learned Senior Counsel would place reliance on a judgment of Hon'ble Apex Court in the case of Lal Chand v. Sh. Paras Ram (D) by LRs. & Ors., JT 2000 (4) SC 408, which is extracted hereunder:-

"1. The sole appellant had died on 23.6.1994. An application was moved on 1.2.1999 on behalf of the respondents for dismissing the appeal as abated. It was thereafter that an application was filed on behalf of the appellant for substitution and for setting aside the abatement. This application dated 11.3.1999 was filed on 16.3.1999. The only ground on the basis of which condonation of delay in filing the applciatio is sought for is contained in paras 3 and of the application which are reproduced below:-

"3. That the applicants although were aware of the proceedings pending before the Hon'ble Court but did not have the knowledge about the counsel/advocate who had been engaged by the appellant to pursue the matter.

That after the death of the appellant the applicants made earnest efforts to find out about the case but due to handicap of their being located at far off village and in the absence of any guidance, were not able to bring the application for bringing themselves on the record of the cases. The knowledge of the case came to the applicants when a letter was received by them from the learned advocate, who was engaged by their ancestor regarding the application having been filed in this Hon'ble Court by the respondents for abatement of the proceedings. This letter was sent by the advocate on 15.2.99 and was received by the present applicants only during the 1st week of March and thereafter, the applicants have moved this Hon'ble Court immediately without further loss of time."

We are not satisfied with the explanation set out above. Consequently, the application is rejected.

The application for substitution having been rejected, the appeal is dismissed as having abated."

I have heard learned counsel for the parties and have perused the entire material available on file as well as have gone through the case-law cited by counsel for the petitioner.

Insofar as the case-law cited by the learned senior counsel for the petitioner is concerned, the same is not applicable to the facts and circumstances of the present case, as the facts of the judgment (supra) are entirely different. In the present case, there is a delay of about four months in filing the application for setting aside abatement and substitution application whereas in the case referred above, there was an inordinate delay of about five years, which was also not explained sufficiently.

A perusal of the impugned order would reveal that no reason has been assigned by the lower appellate court for setting aside the abatement. Be that as it may. The facts remains that the lis is still pending between the parties and it is to be decided on merit, as the appeal has been filed by the respondents/defendants against the order of granting interim injunction in favour of the plaintiff/petitioner. In my considered view, no prejudice has been caused to the petitioner by the impugned order.

For the foregoing reasons, writ petition fails and is hereby dismissed. No order as to costs.