HAZARI LAL Vs. IST ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) This writ petition has been filed for issuing a writ in the nature of certiorari quashing the order dated 22.11.2001 allowing the application for condonation of delay passed in S.C.C. Suit No. 2 of 1981 by the 1st Additional District Judge, Bahraich, as contained in Annexure No. 1 and for issuing a writ of mandamus directing the respondent-1 not to give effect to the impugned order on 22.11.2001 passed by the opposite party No. 1.

(2.) It appears that the opposite parties Nos. 2 and 3 filed a suit for ejectment and arrears of rent and ejectment and mesne profit against Hazari Lal and deceased Mewa Lal. During the pendency of the suit, Mewa Lal died on 16.6.1988. He left behind his wife Smt. Ram Janki who also died on 25.10.1996. A writ petition between the parties was pending in this Court and the proceedings for substitution of the legal heirs of deceased defendant Mewa Lal could not be taken in time. The plaintiff-opposite parties moved application under Order XXII, Rule 4 and Order XXXII, Rule 12 read with Order VI, Rule 17, C.P.C. for amendment by adding word 'deceased' with the name of defendant No. 3 Mewa Lal and since one of the petitioners Naveen Kumar has become major, a prayer was made for removing the phrase 'mother herself next friend'. It was alleged in this application that the suit has not been abated because there is no son or daughter of Mewa Lal and his wife Smt. Ram Janki and the only legal heir of Mewa Lal and Smt. Ram Janki, is Hazari Lal, the defendant No. 2 who is already party to the suit. It was further averred that in the pending Writ Petition No. 3414 (R/C) of 1982 in this Court the name of Smt. Ram Janki was substituted in place of Mewa Lal. This writ petition was dismissed. The plaintiff could not know about the dismissal of the writ petition. On coming to know about dismissal of the writ petition, the petitioner moved the aforesaid application. Along with this application, the plaintiff moved an application under Section 5 of Limitation Act and for setting aside abatement. The defendant-petitioner filed objection. The main objection was that the suit was abated against the surviving heir of Mewa Lal and after the death of Smt. Ram Janki, she left behind her adopted son Desh Raj. Desh Raj is the son of Hazari Lal and nephew of Mewa Lal. It was also pleaded that Desh Raj was adopted by Mewa Lal in the year 1978 and the adoption deed was executed in the year 1988.

(3.) The learned trial court allowed the application for amendment, condonation of delay and setting aside the abatement by impugned order dated 22.11.2001.