Ramesh Chand vs Ichha Devi (since deceased) and anothers

Sureshwar Thakur, J.

1.The instant petition is directed, against, an affirmative order, pronounced, by the learned trial Court upon the applicant's/respondent No.2's

application, for begetting substitution, of, deceased sole plaintiff Ichha Devi, whereunder, the legal heirs of the deceased sole plaintiff, were permitted

to be substituted in her place also whereunder the abatement was set aside.

The deceased sole plaintiff, had, in her life time, instituted a suit for rendition of a decree for permanent prohibitory injunction, for restraining the

defendant, from interfering in any manner vis-a-vis her possession, upon, the suit khasra numbers and also had sought a decree of permanent

prohibitory injunction, from, restraining the defendant, from, demolishing the cattle shed existing upon the suit land, till occurrence of partition thereof,

in accordance with law.

The sole plaintiff Ichha Devi, expired, during the pendency of the suit, and, thereupon her legal heir preferred an application, whereunder he sought,

his substitution in her place, in the array of co-plaintiff(s). The aforesaid application was allowed, by the learned trial Court. The defendant/petitioner

herein, being aggrieved therefrom, hence, motioned this Court.

The learned counsel appearing for the defendant has initially, with much vigour by placing reliance, upon, a decision of the Hon'ble Apex Court,

rendered, in a case titled as Ragho Singh vs. Mohan Singh and others reported in (2001)9 SCC 717, wherein, it stands expostulated, that, upon an

apposite application being preferred, beyond, the statutorily prescribed period of time, and, it remaining unaccompanied, by an application cast under

Section 5 of the Limitation Act, (I) thereupon, the court concerned being precluded, to condone the apposite delay, and, also being precluded, to allow

the apposite application. The aforesaid mandate, of, the Hon'ble Apex Court, would be straight way applicable, vis-a-vis the factual matrix prevailing

hereat, (a) only upon the apposite application, not, containing any recitals, in explication of the apposite delay. Contrarily, if the apposite application,

does therewithin, hold(s), recitals, in explication of the apposite delay, (b) besides when the apposite explication is supported by cogent material,

comprised in an affidavit sworn, by the applicant concerned, (c) thereupon, dehors any separate application, cast under the provisions of Section 5 of

the Limitation Act, remaining unappended with the apposite application, yet would not straightway, attract mandate supra, (d) especially when therein,

there is no disclosure, of dehors, the apposite scribed motion, being unaccompanied by an application, cast, under Section 5 of the Limitation Act, also,

with no tangible explication being purveyed in the apposite scribed motion, for hence the apposite delay being condoned, rather also entailing dismissal

of the apposite application.

Bearing in mind, the aforesaid prima donna expostulation, an allusion tot he apposite application, does bear out the factum, of, it containing a recital

in explication, of the apposite delay. The apposite recital embodied, in the application at hand, is also accompanied by an affidavit, and, with contents of

the affidavit remaining unrebutted, (i) thereupon with the tenacity, of, the apposite explication, being hence cogently established, thereupon, the mere

factum of the apposite scribed motion, remaining unaccompanied, by an application, cast under the provisions of Section 5 of the Limitation Act, would

not render applicable or attractable hereat, the mandate supra, recorded by the Hon'ble Apex Court in Ragho Singh's case, significantly, when as

aforestated the factual matrix prevailing thereat, is pointedly contradistinct vis-a-vis the factual matrix prevailing hereat.

Furthermore, the learned counsel appearing for the petitioner has contended with much vigour, that, with the cause of action, ventilated, by the sole

deceased plaintiff, singularly appertaining to her, also the reliefs espoused, therein, being reliefs propagated in personam, thereupon, her legal

representative(s) being barred to, on her demise, seek his substitution, in her place nor also thereupon, the learned trial Court, is, empowered to permit

his substitution in the apposite array of co-plaintiff. The aforesaid submission is straightway rejected (a) as the principle of reliefs propagated, in

personam, by the deceased plaintiff, hence debarring her legal representative, to, on her demise seek, his, substitution in her place, (b) is workable only

in respect of personal contract of service or vis-a-vis contracts whereunder the obligation, for their personal execution, is fastened only upon deceased

plaintiff or also when causes of action, propagated in the plaint by the deceased plaintiff are closely appertaining to her personal status/reliefs in the

suit land concerned, and, on her demise neither cause(s) of action hence surviving nor cause(s) of action, devolving upon her successor-in-interest.

Bearing in mind the aforesaid principles, and, also for guaging whether the causes of action, espoused, in the plaint by the deceased plaintiff, being

hence propagated, in personam or for the benefit of the estate, an allusion, to the averments, cast in the plaint more importantly, the one(s) occurring in

paragraph No.2, is imperative, paragraph No.2 whereof is extracted hereinafter:-

“2. That the defendant who is very clever and headstrong person and has no respect for law, has started threatening the plaintiff to interfere, take

forcible possession, to demolish the cattle shed and make additions and alterations in the cattle shed, to raise forcible construction and to take forcible

possession by forcibly ousting the plaintiff and her sons since yesterday. The alleged act and conduct of the defendant is wrong, incorrect, illegal, void

and the same amounts to invasion of the legal rights of the plaintiff. The defendant has no right to disturb the exclusive Hissedari possession of plaintiff

and to demolish the existing cattle shed and raise any sort of construction until and unless the suit land is partitioned in due course of law.†A reading

thereof does pointedly, and, candidly make a vivid disclosure, of the deceased plaintiff, not, propagating therein reliefs in personam, rather hers

propagating therein reliefs vis-a-vis her estate. Consequently, on her demise, given the causes of action, initially propagated being vis-a-vis her estate,

thereupon, hence they remained alive, and, also remained continued, for their espousal, even by her successors-in-interest. In sequel, the substitution of

her legal representative, in place of the sole deceased plaintiff, in the array of co-plaintiff(s), is apt as well as meritworthy.

For the foregoing reasons, the instant petition is dismissed and the impugned order is maintained and affirmed. The parties are directed to appear,

before, the learned trial Court on 23rd May, 2018. However, it is made clear that the observations made hereinabove shall have no bearings on the

merits of the case. No order as to costs. All pending applications also stand disposed of. Records, if received, be sent back forthwith.