DURGA PRASAD Vs. JAANAK DULARI

JUDGEMENT

(1.) THIS revision has been directed against an order passed by Additional S.D.O. Lalitpur on 30-5-2000 by which substitution application for the legal heirs of defendant No. 3 Ram Narain son of Radha Charan was dismissed and case was abated against him on the ground that the substitution application was moved after more than two years and no sufficient reason or ground was disclosed for filing substitution application so late.

(2.) I have heard learned Counsels of both the parties and have perused the records.

(3.) IN the file of the lower Court there is an application dated 11-2-99 of respondent No. 5 Smt. Uma Srivastava wife of Sri Om Prakash Srivastava, son of deceased defendant No. 3 wherein it has been stated that defendant Ram Narain has died on 18-9-1997 and because his legal heirs have not been substituted within time so the suit against deceased be abated. After this date on 8-4-99 an application under Order XXII, Rule 9 and Section 151 C.P.C. was moved supported by affidavits, by the plaintiff revisionist for substitution of legal heirs of the deceased. The main argument of the learned Counsel for the respondents before this Court has been that the delay in filing the substitution application is explained and that the revisionist did no effort to find out the legal heirs of the deceased. Though the order passed by the learned A.S.D.O. is detailed one but the presumption that if the revisionists themselves could not get knowledge of the death of the defendant atleast their Advocate should have known this fact being advocate of the same Court wherein the son of the deceased was an advocate and a condolence was organised on his death, should not have been made the basis for the order that no counter-affidavits have been filed to controvert the affidavits of the revisionists-plaintiffs. It is also objectionable that the plaintiffs-revisionists did not try to find out the legal heirs of the deceased. They should have obtained the copies of the Pariwar Register or voter list to ascertain the legal heirs. Despite all these circumstances and facts I feel it necessary in the interest of justice that the application for substitution of the legal heirs of the deceased should be allowed but with a condition that within two weeks from the date of order the revisionists-plaintiffs will substitute legal heirs of the deceased. Thereafter the learned trial Court will proceed to hear the case as par law. If the revisionists-plaintiffs failed to do so within the stipulated time, the learned trial Court will proceed accordingly.