Allahabad High Court
Chhandi vs Smt.Anita And Others on 25 July, 2019
Author: Harsh Kumar
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 52 Case :- SECOND APPEAL No. - 1164 of 1992 Appellant :- Chhandi Respondent :- Smt.Anita And Others Counsel for Appellant :- K.N.Saxena,Atul Dayal,S.B. Yadav,Shiv Bahadur Yadav Counsel for Respondent :- V.K.Singh,R.K. Shukla,Rakesh Kr.Shukla,Rakesh Kumar Shukla,Ruduvant Pratap Singh Hon'ble Harsh Kumar,J.
Heard Shri Shiv Bahadur Yadav, learned counsel for appellant and Shri Ruduvant Pratap Singh, learned counsel for proposed respondent no.2/1 Raju and the third party applicant and perused the record.
Order on Civil Misc. Abatement Application No.12 of 2019, Civil Misc. Delay Condonation Application No.14 of 2019, Civil Misc. Substitution Application No.15 of 2019 & Civil Misc. Substitution Application No.17 of 2019 Abatement application supported with affidavit was moved by Raju on 25.1.2019 with the allegations that his father Govind Das-respondent no.2 has died during pendency of appeal on 6.10.2015 and since no substitution application has been moved, the appeal has abated and is liable to be dismissed as abated. Thereafter, appellant moved an application on 12.2.2019 for substitution of Raju being son and legal representatives of respondent no.2 Govind Das with an application for condonation of delay, supported with affidavit and another application was moved by appellant on 1.3.2019 for amendment in memo of appeal, upon death of respondent no.1 Smt. Anita supported with affidavit, wherein it was contended that respondent no.1 Smt. Anita wife of Rajan has died issueless in September, 2016 hence word "deceased" be mentioned against her name. Against the applications, a counter affidavit has been filed by Raju, who had moved application for abatement.
In the counter affidavit filed by Raju, the proposed respondent no.2/1 it has been contended that;
"In reply it is however, submitted that Smt. Anita had died issueless and her property has been inherited by her legal heir Devar Raju and also Smt. Anita has executed a registered sale deed dated 02.06.1992 in favour of Raju also, thus Raju is the legal heir of deceased Smt. Anita both by inheritance & transfer".
In view of allegations of alleged execution of registered sale deed dated 2.6.1992 by Smt. Anita and in view of undisputed fact that she died issueless, the proposed respondent Raju may not claim himself to be her heir or legal representative by succession or inheritance.
There is sufficient ground for allowing above application for amendment as the the amendment sought by appellant is formal in nature and is liable to be allowed. Amendment application is allowed accordingly. Let amendment be incorporated in memo of appeal within seven days.
It was held by the court in the case of Ram Prasad Vs. State Bank of Bikaner, AIR 1972 Alld 456 that:-
"Where there are several legal representatives, it is sufficient if at least one of them is impleaded under Order XXII Rule 4 C.P.C. If a bonafide application within time for substitution of some of heirs only, is sufficient to keep suit alive, there is no reason why the same principle should not hold good in a ease where some of the heirs are already on record.
The prayer for setting aside abatement is implicit in prayer for substitution"
In the case of 'Reoti Prasad Vs. Hoti Lal, AIR 1964 Alld 233', a Division Bench of this Court held that:-
"No question of abatement will arise if one of several legal representatives of a deceased person representing a part of estate, is brought on record".
Undisputedly, one of the legal representatives of respondent no.2, respondent no.3 his wife who is already on record, the appeal does not stand abated. The application for substitution of another legal representative of respondent no.2, Raju the son has been moved after the prescribed period of limitation with an application for condonation of delay moved with the averments that appellant had no knowledge of death of respondent no.2 and learned counsel for respondent did not obey his duly cast under provisions of Order XXII Rule 10(A) C.P.C. and did not intimate the Court about his death within stipulated period of three months, rather informed after considerable delay through abatement application.
The delay in moving substitution application does not appear deliberate and is duly explained to the satisfaction of Court and is liable to be condoned. The delay condonation application is allowed accordingly and delay in moving of substitution application is condoned.
The abatement application has no force and is rejected accordingly.
It is not disputed that proposed respondent no.2/1 Raju is the son and legal representative of respondent no.2, hence, the substitution application is liable to be allowed and is allowed accordingly. Let amendment be incorporated in memo of appeal within one week with the direction that name of respondent no.2 will not be deleted from the array of parties rather word "deceased" will be mentioned against his name.
Let substitution be incorporated in memo of appeal within seven days.
Order on Civil Misc. Impleadment Application No.2 of 2018 The application has been moved with prayer that applicants may be impleaded as respondents in above noted second appeal.
Counter and rejoinder affidavits have been exchanged on impleadment application.
Perusal of application shows that there is no name of applicant, except the name of counsel shown in the application. Since application does not contain name of any applicant who seeks impleadment, the Court is not expected to search elsewhere for the particulars of applicant/applicants. The application is vague and has no force and is liable to be rejected. Application is rejected accordingly.
Order on Civil Misc. (Impleadment) Application No.354433 of 2017 The application has been moved for impleadment of applicants as appellant nos.2, 3 & 4.
Counter and rejoinder affidavits have been exchanged on impleadment application.
Perusal of application shows that there is no name of applicant, except the name of counsel shown in the application. Since the application does not contain name of any applicant who seeks impleadment and the Court is not expected to search elsewhere for the particulars of applicant/applicants. The application is vague and has no force and is liable to be rejected. Application is rejected accordingly.
List after four weeks.
Order Date :- 25.7.2019 Anil K. Sharma