KISHALAYA BANERJEE Vs. KAMALA DEVI

JUDGEMENT

(1.) The order under challenge is dated 21.01.2012 passed by Small Cause Court/Civil Judge (Senior Divison), Varanasi allowing substitution application in respect to defendant Sunil Kumar Banerjee who died on 09.10.2006 and revisional order dated 27.07.2012 passed by District Judge, Varanasi dismissing Revision No. 07 of 2012 against aforesaid order dated 21.01.2012.

(2.) Learned counsel for the petitioners submitted that the defendant died on 09.10.2006 while application for substitution was filed on 29.01.2007, i.e., beyond 90 days and without there being any application for condonation of delay, it was liable to be rejected but the courts below have committed patent error in allowing substitution and rejecting petitioners' application of abatement of S.C.C. Suit No. 16 of 2005. He has placed reliance on Apex Court's decisions in Ragho Singh Vs. Mohan Singh and others, 2000 RevDec 689 and Mahabir Singh Vs. Subhash and others, 2008 1 AWC 165 as well as this Court's decision in K.B. Agarwala Vs. Smt. Chandrawati and others, 1976 AIR(All) 15 and (Smt.) Mahendra Kaur Vs. Hafiz Khalil,1987 RevDec 392.

(3.) The basic submission of Sri A.K. Singh, Advocate for considering as to who are the legal heirs and representatives of deceased defendant the Trial Court had to permit the parties to adduce evidence whereafter the matter was clear about legal heirs/representatives. In these circumstances petitioners is that after the death of defendant, if no substitution is filed within 90 days, by operation of law the suit would abate and it does not require any formal order. Thereafter it can revive only if the abatement is set aside on an application filed by plaintiff explaining delay and not otherwise. It is in these context he has cited and relied on the authorities, referred above. He further submitted that both the courts below have not looked into this aspect of the matter correctly, therefore, the impugned orders are liable to be set aside.