JAGANNATH Vs. ADDITIONAL COMMISSIONER

JUDGEMENT

(1.) Heard Sri Sankatha Rai, learned Counsel for the applicant-petitioners, Ms. Nahood A. Moonis, learned Counsel for the respondent Nos. 3, 5, 6 and Sri Piyush Shukla, learned Standing Counsel for the respondent Nos. 1, 2 and 4.

(2.) This application being Civil Misc. Application No. 106120 of 2000, has been filed under Section 5 of the Limitation Act for condoning the delay in filing of the substitution application as well as for setting aside the abatement. In Paragraph No. 4 of the affidavit filed in support of the present application, it has been stated that the deponent came to Allahabad on 16th November, 2000 when he was informed that the writ petition has been dismissed and his Counsel also instructed him to supply necessary information with regards to the legal heirs of respondent No. 3 who had since expired.

(3.) It is thereafter stated that, the petitioners belong to rural area and were not informed about the substitution of legal heirs of respondent Nos. 2 and 3. The petitioners were informed about the death of respondent No. 3 in May, 1991. It has further been stated that he petitioners were unaware of the proceedings to be taken for bringing on record the legal heirs of the deceased respondent No. 2 and in such circumstances, receiving the information from the Counsel. The deponent filed substitution application through his Counsel after collecting the necessary information. The present application has been filed on 14th December, 2000 before this Court. A counter affidavit has been filed in reply to the allegations made in the said Section 5 application by the grand-son of the respondent No. 3 stating that the said respondent had expired in the year 1991. Absolutely, no allegations with regards to mala fide or negligence have been made in the said counter affidavit. This Court on 9th April, 2004 passed an order requiring the applicant to file such better affidavit as he may be advised with regards to the delay in filing of the substitution application. In compliance thereof the supplementary affidavit has been filed on 20th April, 2004 Wherein it has been stated that the exact date of the death of respondent No. 3 was disclosed by means of the supplementary affidavit filed on behalf of the legal heirs of respondent No. 3, the petitioners, for the first time, obtained knowledge of the exact date of the death of the respondent No. 3 as 10th April, 1985. It has further been stated in Paragraph 8 of the said affidavit that the petitioners were unaware of the proceedings and the limitation prescribed for bringing on record legal heirs of the respondent No. 3 by means of the substitution application. It has further been stated that the provisions of Order XXII, Rule 4 of the Code of Civil Procedure, are not strictly applicable to proceedings under Article 226 of the Constitution of India.