HAZARI LAL Vs. RAMESHWAR PRASAD

JUDGEMENT

(1.) O. N. Khandelwal, J. Respondent Nos. 1 and 2 (landlords) had filed a suit for eviction and recovery of rent and damages against tenants Shanti Devi and Vidya Devi (respondent Nos. 3 and 4) and sub-tenants Hazari Lal and Mewa Lal. Mewa Lal died issueless on 16-6-1988, his widow Smt. Ram Janki also died on 25- 10-1996. Application for substitution was moved on 12-5-2000 alleging that the brother of the deceased Mewa Lal (i. e. Hazari Lal) is already on record, therefore, the consequential amendment should be permitted and abatement, if any, should be set aside after condoning the delay. That application has been allowed by the JSCC/additional District Judge Bahraich on 27-4- 2004, which is now under challenge in this revision.

(2.) THE defendants Nos. 1 and 2 (Namely Shanti Devi and Vidya Devi) who are Opposite Party Nos. 3 and 4 in this writ petition, in paragraph-16 of their written statement admitted this fact that the disputed shop was given to defendant Nos. 3 and 4 (Mewa Lal and Hazari Lal) on partnership and in paragraph-18 they had further admitted that they had started taking rent from them on account of adverse finding by the Trial Court and Appellate Court in a suit of accounting. Respondent Nos. 1 and 2 had specifically alleged in the plaint that Smt. Shanti Devi and Vidya Devi (respondent Nos. 3 and 4) are their tenants who have sub-let the premises in suit to Mewa Lal and Hazari Lal.

(3.) THE plaintiffs moved an application No. C-46 dated 12-5-2000 for amendment and substitution alongwith an application No. C-47 for condonation of delay under Section 5 supported by an affidavit C- 48. It was specifically stated that the writ petition No. 3414/1982 filed by Mewa Lal and other defendant against the Courts order dated 19-3-1982 was pending before the High Court and the plaintiffs were under the impression that defendants must have moved an application for substitution. THE plaintiffs was not required to move any substitution application. Similar advice was given by their Counsel and they came to know in the Month of April 2000 that the Writ Petition has been dismissed whereupon they applied for copy of the order, Hazari Lal, heir of the deceased (Mewa Lal and his wife Smt. Ram Janki) is already on record as defendant No. 4, therefore, question of abatement does not arise. But in case it is held that abatement had taken place. In that case delay under Section 5 of Limitation Act be condoned and substitution be allowed.