Allahabad High Court
Umesh Chand Paliwal And Others vs Board Of Revenue, U.P., Allahabad And ... on 1 April, 1998
Equivalent citations: 1998(3)AWC1696, 1998 ALL. L. J. 2075, 1998 A I H C 4867, (1999) 1 CIVLJ 441, (1998) 4 RECCIVR 579, (1998) 3 ALL WC 1696, (1998) REVDEC 394
JUDGMENT Sudhir Narain, J.
1. This writ petition is directed against the order of the Board of Revenue dated 13.8.1996, whereby the representation filed by the contesting opposite parties were allowed and the substitution application filed by the petitioners were dismissed.
2. The facts in brief are that petitioner No. 3 and predecessor of petitioners No. 1 and 2 filed suit under Sections 209 and 229B of U. P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act), read with Section 164 of U. P. Urban Area Zamindari Abolition and Land Reforms Act seeking relief of declaration that they were Bhumidhars of the land in suit, on the allegations that the land in dispute belonged to one Babu Ram son of Ram Dayal who had sold his half share to the plaintiffs by means of registered sale deed dated 24/25 September. 1959. The other half share was sold by Babu Ram to Gopi Chand and Bhikhu Lal. Gopi Chand and Bhikhu Lal sold their share purchased by them from Babu Ram to plaintiff by registered sale deed dated 7.5.1963. Babu Ram was impleaded as defendant No. 10 in the suit. The suit was contested by the contesting defendants asserting that Ram Dayal, father of defendant No. 2 Babu Ram had executed an agreement to sell dated 1.7.1958 of an area of 2.60 acres of land of plot No. 73 in their favour and after his death, Babu Ram executed a deed of surrender accepting the agreement to sell dated 1.7.1958 in favour of the respondents. Subsequently, on 31.12.1959 Ram Mohan Tiwari, defendant No. 4 and his brothers purchased Zamindari rights of Suresh and Harish Chand, the then Zamindars of an area of 1.40 acres of land and Babu Ram executed another deed of surrender dated 4.2.1960 in their favour in which he admitted the possession of the respondents over the entire area of land. Babu Ram, during the pendency of the suit, died on 11.2.1988. The contesting defendant-respondents filed an application on 20.7.1988 informing the Court that Babu Ram, defendant No. 10, had expired and as the substitution application had not been filed the suit stood abated. The very next day, i.e., 21.7.1988 the plaintiff-petitioners filed application for substituting the names of the heirs of the deceased defendant Babu Ram. The respondents filed objection to the said application. The substitution application was allowed. It was later on found that the detailed order had not been typed separately and was not available on record. On 31.3.1992, the trial court passed an order for hearing the substitution application afresh.
3. The petitioners filed application for condonation of delay in filing the substitution application on 10.4.1992. In the application, it was stated that the plaintiffs had no knowledge of the death of deceased Babu Ram and, therefore, they could not file objection to the said application. The trial court allowed the substitution application by a detailed order on 4.2.1993 and condoned the delay in filing the substitution application. The respondents filed revision against this order before the Additional Commissioner, Kanpur Region, Kanpur. The Additional Commissioner vide his order dated 16.12.1993 made a reference to the Board of Revenue with the recommendation to allow the revision. The Board of Revenue has accepted the revision vide impugned order dated 13,8.1996 and has rejected the substitution application.
4. I have heard Sri K.M.D. Agarwal, learned counsel for the petitioner and Sri Shashi Nandan, learned counsel for the respondents.
5. Learned counsel for the petitioner submitted that the trial court having condoned the delay in filing the substitution application, the Board of Revenue in revision had no jurisdiction to interfere with the discretion exercised by the trial court. Defendant No. 10 Babu Ram died. An application was filed on behalf of the contesting defendant-respondents on 20.7.1988 that defendant No. 10 had died and the suit be abated. The very next day, i.e., on 21.7.1988, the plain tiff-petitioners filed application for substitution. The application filed by the defendant-respondents on 20.7.1988 does not disclose the date of death of Babu Ram, defendant No. 10. On 10.4.1992, an application was filed on behalf of the plaintiffs to condone the delay in filing the substitution application. In paragraph 3 of the said application, it was stated that the plaintiff-applicants had no knowledge regarding the death of Babu Ram. They filed substitution application on 21.7.1988 when the defendant filed application on 20.7.1988 to abate the suit. In the application, it was prayed that the delay in filing the substitution application be condoned and the abatement order be set aside. The contesting defendants filed objection to the said application. In paragraph 4 of the application in reply to paragraph 3 (c)f the application, it was nowhere stated as to when the plaintiff-applicants had knowledge regarding death of Babu Ram. The basic objection was that in the substitution application the date of death was not given nor it was accompanied with an application under Section 5 of the Limitation Act, The copy of the application and the objection have been annexed as Annexures-3 and 4 to the counter-affidavit. The trial court condoned the delay in filing the substitution application. The Board of Revenue exercised the revisional power under Section 333 of U. P. Zamindari Abolition and Land Reforms Act, but it had no jurisdiction to interfere with the discretion exercised by the trial court. It has also not given any specific reason to hold that the trial court acted illegally in condoning the delay in filing the application.
6. Order XII, Rule 4 (5) provides that where the plaintiff was ignorant of death of the defendant and files substitution application after he comes to know of it, that will be sufficient cause to condone the delay in filing the application. Order XII, Rule 4 (5) reads as under :
"4. Procedure in case of death of one of several defendants or of sole defendant :
.....
(5) Where :
(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act. 1963 (36 of 1963), and the suit has, in consequence, abated, and
(b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under Section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said Section 5, have due regard to the fact of such ignorance, if proved."
The Board of Revenue, respondent No. 1, totally failed to notice this aspect.
7. Learned counsel for the respondents submitted that there was no prayer in the application to set aside the abatement. A perusal of the application filed by the petitioners to condone the delay (Annexure-C.A. 7) to the counter-affidavit indicates that the petitioner-applicants had also prayed for setting aside the abatement. Secondly, this Court in Virendra Kumar Singhal v. Murari Lal Singhal and others. 1993 AWC 783, held that it is not necessary to file a separate application for setting aside the abatement. If an application is filed to condone the delay in filing the substitution application, the prayer for setting aside the abatement is implicit in it.
8. The next submission of learned counsel for the petitioners is that defendant Babu Ram had not filed any written statement contesting the suit of the plaintiff. On the other hand, he had given statement admitting the execution of the sale deed in favour of the plaintiff-petitioners. Counsel for the respondents urged that statement of Babu Ram remained uncross-examined and his statement cannot be taken as conclusive. It may, however, be noted that Order XII, Rule 4 (4) provides that the Court whenever it thinks fit may exempt the plaintiff from necessity of substituting the legal representative of any defendant who has failed to file written statement or who having filed it, has failed to appear and contest the suit at the hearing ; and judgment may, in such a case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as it has been pronounced before death took place. Respondent No. 1 totally failed to consider this aspect of the matter.
9. The next submission of learned counsel for the petitioner is that Babu Ram, defendant No. 10, had executed sale deed in favour of the plaintiffs.
He was not necessary party in the suit. He has placed reliance upon the decision of P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar and others, JT 1995 (5) SC 163, wherein it was held that if a co-owner has already sold his share by registered sale deed in favour of the respondents on record, it is not necessary to bring legal representatives on the record or to transpose them as legal representatives.
10. Learned counsel for the respondents has placed reliance upon the decision Dwarika Prasad Singh v. Hari Kant Prasad Singh, 1973 RD 34, wherein the Supreme Court held that in a suit for specific performance of the contract if the subsequent vendee has not been impleaded as a party against whom the relief has also been sought, the suit will abate as the transferor is a necessary party, and a contradictory decree will come to an existence after the trial court has decreed the suit. It is not necessary to go into this legal question. The trial court having passed order condoning the delay and there was no justification to interfere with that finding by respondent No. 1, the order passed by respondent No. 1 is liable to be quashed.
11. In view of the above, the writ petition is allowed and the order dated 16.12.1993 is hereby quashed. The trial court will proceed to decide the suit in accordance with law.
12. The parties shall, however, bear their own costs.