RASHID KURESHI AND ORS. Vs. BADRE ALAM

JUDGEMENT

(1.) Heard learned Counsel for the parties and perused the record. It appears that an application under section 21(1)(a) of U.P. Act No. 13 of 1972 for release of the accommodation in dispute was moved by the respondent which was registered as Rent Case No. 27 of 2006, Badre Alam v. Smt. Begum Mustajbunnisha and others. The aforesaid release application was allowed by the Prescribed Authority vide his order dated 9.4.2009. Aggrieved by the aforesaid order, Rent Control Appeal No. 35 of 2009, Smt. Begum Mustajbunnisha v. Badre Alam was preferred before the Appellate Court.

(2.) An application was moved by the petitioners in that case for time to move substitution application on the ground that death certificate of the deceased could not be received. Thereafter the date was fixed for 8.6.2010 and 6.7.2010. The petitioner moved an application on 28.7.2010 along with death certificate of deceased Smt. Begum Mustajbunnisha and further 15 days' time was sought to bring the name of her heirs on record. However, the application was rejected by the VIIth Additional District and Sessions Judge, Kanpur Nagar vide his order dated 28.7.2010 on the ground that the appeal stands abated as the limitation for filing the substitution application was 15 days. Thereafter, the petitioners moved another application dated 18.8.2010 under the provisions of Rule 22(f) of U.P. Act No. 13 of 1972 praying for setting aside the abatement, yet another application dated 18.8.2010 under Order VI, Rule 17 read with section 151 C.P.C. was moved by the petitioners for amendment in the memo of appeal. Both these applications are pending.

(3.) The contention of learned Counsel for the petitioners is that under Rules 22(f) and 25(1) of U.P. Act No. 13 of 1972 the limitation is of one month for moving the substitution application and he submits that even after moving of the substitution application beyond this period appeal could not abate. Learned Counsel for the petitioners further submits that Rule 25(1) provides limitation for one month for moving substitution application for bringing on record the legal heirs and representatives of the deceased party but this rule does not say any where the effect if such an application is not made within time and there is nothing in this Rule to indicate that the proceedings will abate if no application is made within a month of the date of party. He states that since the Rule is silent in this regard, the provisions of this Rule are at the best be directory and not mandatory. Admittedly/the petitioners have not moved an application within a period of one month as provided in Rule 22(f) as well as Rule 25 of U.P. Act No. 13 of 1972. Even if the Rule is directory as argued by the learned Counsel for the petitioners, he has to give sufficient reasons for moving application along with delay condonation application.