Allahabad High Court
Ramraj And 2 Others vs Ram Karan And 2 Others on 8 February, 2023
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 19 Case :- MATTERS UNDER ARTICLE 227 No. - 576 of 2023 Petitioner :- Ramraj And 2 Others Respondent :- Ram Karan And 2 Others Counsel for Petitioner :- Vyas Narayan Shukla Hon'ble Manish Mathur,J.
Heard learned counsel for petitioners. In view of order being passed, notices to opposite parties stand dispensed with.
Petition under Article 227 of Constitution of India has been filed challenging order dated 18th January 2023 passed by Civil Judge in regular suit No. 719 of 2000 whereby application filed by petitioners for framing of additional issues and taking evidence thereupon has been rejected.
Learned counsel for petitioner submits that predecessor-in-interest of opposite parties had filed the aforesaid suit for permanent and mandatory injunction which was registered as regular suit No. 719 of 2000 and was decreed on 15th September, 2010 but appeal thereagainst was allowed and the case was remanded for decision afresh while setting aside the judgment and decree dated 15th September, 2010. It is submitted that prior to appeal being filed, the defendant No.2 who is the predecessor-in-interest of petitioners had passed away and therefore after remand, application for substitution under Order 22 Rule 4 of the Code of Civil procedure was filed by the plaintiff seeking to bring on record, the petitioners as legal representatives and heirs of deceased-defendant No.2. It is further submitted that the aforesaid application was filed on 6th January, 2022 along with another application under Order 6 Rule 17 of the Code seeking to amend the plaint and incorporate the petitioners as legal representatives of defendant No.2. It is submitted that the petitioners as proposed defendants had filed their objections on the application seeking framing of additional issue and for taking evidence on the application for substitution and consequential amendment, which has been rejected.
Learned counsel for petitioner submits that the application for substitution of defendant No.2 was filed extremely belatedly without any cogent explanation for the delay and therefore the petitioners as proposed defendants had filed the application seeking framing of additional issues and for opportunity to lead evidence thereupon. It is submitted that the trial court has erred in rejecting the same only on the ground that the suit proceedings are one of the oldest in district and directions by the High Court have already been issued under the action plan 2022-23 for its early disposal.
Upon consideration of submissions advanced by learned counsel for petitioners, it transpires that application for substitution and consequential amendment in the plaint had been filed by the plaintiff on 6th January 2022 seeking substitution of the deceased-defendant No.2 with the petitioners who were stated to be the legal representatives and heirs of said defendant No.2. The fact that the petitioners are the legal heirs and representatives of defendant No.2 has not been denied by learned counsel for petitioner. It also appears from reading of the impugned order that another application for amendment had been filed on 6th January, 2022 pertaining to valuation and courts fees payable thereupon on which point additional issues were framed and same has also been decided on 14th April, 2022. However neither the said order nor the fact of framing of additional issues on the aforesaid points are under challenge in the present petition which is restricted to framing of additional issues with regard to delay in filing substitution application.
It is noticeable that it is in pursuance of allowing application for substitution and consequential amendments that the petitioners have been incorporated as defendants substituting the defendant No2. The aforesaid order allowing the application for substitution and consequential amendments are not under challenge. Once the application for substitution has already been allowed bringing on record the petitioners as legal heirs and representatives of deceased-defendant No.2, in the considered opinion of this Court, the petitioners can not take benefit and challenge the same order simultaneously, particularly when they are taking benefit of order allowing the substitution application itself. Even otherwise once the substitution application has been allowed and challenge thereto has not been made by petitioners, there would not be any utility of framing an additional issue as is being sought for by petitioners. The trial court has not erred in indicating the fact that the petitioners being the legal heirs and representatives of deceased defendant No.2 stepped into his shoes and it is not permissible for the legal heirs or representatives of deceased defendant to raise any new plea which has not been raised earlier by the predecessor-in- interest while filing the written statement. Even otherwise the matter does not pertain to any issue requiring framing of additional issues at the time prior to allowing of substitution application.
In the considered opinion of this Court, the application filed by petitioners registered as paper No. 162-Ga-2 was misconceived and was rightly rejected by means of impugned order. Consequently this court does not find any error of law in the impugned order dated 18th January, 2023 passed in regular suit No. 719 of 2000. Consequently the petition being devoid of merits is dismissed.
Order Date :- 8.2.2023 prabhat