HARSH VARDHAN Vs. SURENDRA KUMAR GUPTA

JUDGEMENT

(1.) 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 dtd. 24/9/2011 passed by Additional District Judge/F.T.C. 3rd Dehradun.

(2.) 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 dtd. 28/8/2004, 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 20/9/2011, 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 dtd. 24/9/2011, allowed the substitution application and set aside the abatement on the cost of Rs.500.00.

(3.) 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. and Ors., JT 2000 (4) SC 408, which is extracted hereunder:-