MADAN GOPAL Vs. VTH ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) THIS writ petition is directed against the order dated 12.3.1981 passed by the Addl. District Judge, Aligarh, dismissing an appeal filed by the petitioner under Section 22 of the U.P. Act No. 13 of 1972 for non-prosecution.

(2.) THE relevant facts are that the petitioners filed an appeal against an order of eviction passed against them by the Prescribed Authority upon an application moved by the respondent-landlord under Section 21(1)(a). While that appeal was pending the tenant died. The petitioners are his sons. They filed a substitution application in which they proposed themselves as the heirs to be impleaded as appellants and their sisters, who are arrayed as respondent Nos. 3 to 8 herein, to be impleaded as respondents in the appeal. It appears that the petitioners were granted time to take steps for the service on their sisters. However, the petitioners could not succeed in serving their own sisters despite repeated opportunity given to them in that behalf. Ultimately the petitioner were allowed to serve the said respondents by publication. They were granted time to take steps with regard to publication of notice within a specific time. They, however, failed to take steps within the time granted by the Court. They moved an application for condonation of delay in taking steps. The Court fixed 12.3.81 for disposal of that application as well as the appeal itself. By the impugned order the Court held that no good ground existed for condonation of delay in taking steps and that in the circumstances of the case the application for condonation was liable to be rejected. In the last paragraph of the order the Court observed "in these circumstances the application dated 25.2.1981 is hereby rejected." Thereafter in the operative part of the order the Court dismissed the appeal itself for non-prosecution.

(3.) HAVING heard learned counsel for the parties, I am of the opinion that the above contention is well founded. From a perusal order, it is clear that the appeal has been dismissed for non prosecution mainly in consequence of the failure of the petitioners in taking steps to serve their sister within the time granted by the Court. The appeal was not dismissed on any other ground except rejection of the application dated 25.2.1981. It is apparent that the rejection of the application dated 25.2.1981. It is apparent that the rejection of the application dated 25.1.1981 could not automatically lead to the dismissal of the appeal in its entirety. The appeal was liable to be dismissed only against the unserved respondents and not against those who had been duly served. On the findings of the Court below therefore, the appeal was wrongly dismissed against those respondents who had already been served. It should have been dismissed only against such respondents with regard to whom the petitioner did not take steps.