LAXMI DEVI Vs. SITA MEHROTRA

JUDGEMENT

(1.) S. U. Khan, J. Learned Counsel for landlord-respondents who has appeared through Caveat states that he does not want to file any counter affidavit and the writ petition may be disposed of right now.

(2.) RELEASE application under Section 21 of U. P. Act No. 13 of 1972 filed by landlord-respondent against tenant-petitioners in the form of P. A. Case No. 6 of 1989 was allowed by P. A. /civil Judge (J. D.), Kannauj District Farrukhabad through judgment and order dated 10-8-1998. Tenant filed appeal against the judgment and order being R. C. Appeal No. 1 of 1998. During pendency of appeal tenant died. Petitioners who are his legal representatives filed application for substitution. As the application was filed after 30 days hence it was accompanied by an application for condonation of delay. In the said application due to inadvertence 23-4-2000 was fixed for disposal, which was Sunday. The case was taken up on the next day namely 24-4-2000. In the absence of petitioners said application was rejected and appeal was dismissed as abated. Thereafter,application to recall the said order was filed which was disposed of on 2-8-2000. Lower Appellate Court rejected the application seeking to recall abatement of the appeal dated 24-4-2000 and to hear substitution and delay condonation applications. However, the order dated 24-4-2000 dismissing the appeal was recalled by the said order on the ground that petitioners had no knowledge of the date 24-4- 2000. Thereafter, some more applications were filed and ultimately by order dated 31-5-2004 appeal was dismissed as abated. Earlier an application was filed numbered as 138 Ka, which was rejected on 29-3-2004. By the order dated 6-4-2004 it was held that appeal had abated and appeal was also dismissed in default. Thereafter, an application to recall the said order was filed which was dismissed on 31-5-2004. The second writ petition is directed against order dated 31-5- 2004 and the first writ petition is directed against orders dated 29-3-2004 and 6-4-2004.

(3.) ACCORDINGLY writ petitions are allowed. Impugned orders passed by lower Appellate Court are set aside and substitution application filed by tenant/petitioner before the law appellate Court is allowed.