RAM KISHAN Vs. D.D.C.

JUDGEMENT

(1.) Civil Misc. Substitution Application No. 229872 of 2012.

(2.) Chandan Singh son of Ghasi (respondent-8) filed a Counter-affidavit to the aforementioned Affidavit. In the Counter-affidavit, it has been stated that by virtue of Chapter VIII Rule 38-A, of the High Court Rules, the provisions of Order 22 C.P.C. have been applied to the writ proceedings. For filing of the substitution application, 90 days limitation has been provided but the application has been filed after about 20 years. Radha Kishan son of Ram Kishan (sole petitioner) was not substituted as such Narsingh has no right to be substituted as an heir of Ram Kishan. On expiry on 90 days from the date of death, the writ petition has been abated and 60 days limitation has been provided for filing an application for setting aside abatement. No application for condoning the delay in filing the application for setting aside abatement has been filed as such the application is liable to be rejected as time barred. Due to some dispute being raised in respect of possession over the land in dispute, as due to abatement of the writ petition, stay has been automatically discharged, Narsingh came to Allahabad and filed the substitution application alongwith delay condonation application and the application for setting aside the abatement, which are not maintainable.

(3.) The substitution application has been hotly contested by the counsel for the respondents. The counsel for the petitioner submitted that Supreme Court has held that illiteracy and poverty are sufficient cause for condonation of delay. He submitted that Radha Kishan and Narsingh had no knowledge of the procedure of the Court for moving substitution application on the death of a party as such the substitution application could not be filed within 90 days of the death. Ignorance of the procedural law is sufficient cause for condonation of delay. He submitted that Sri S.K. Saxena, Advocate (as he was then) was selected in Higher Judicial Services, U.P. and thereafter elevated to the Bench of the High Court as such for a long time there had been no communication from either side. Narsingh came to Allahabad on 1.8.2012 for making inquiry in his case and tried to contact Sri S.K. Saxena, Advocate (who has been elevated to the Bench). Then he met with Sri Ashish Kumar Srivastav, Advocate and informed him about the death of the sole petitioner and his son. Then on the advise of the counsel, substitution application has been filed. The applications, affidavit were drafted and prepared on 6.8.2012 and filed on 8.8.2012 without any further delay. There was no negligence on the part of the applicant. As such delay in filing the substitution application be condoned and abatement be set aside and substitution application be allowed.