SWAMI NATH Vs. STATE OF U P

JUDGEMENT

(1.) LIST has been revised. Heard Sri H.R. Shukla, learned counsel for the petitioner. None appears for the opposite parties. The brief facts of the case as stated in the writ petition are that late Smt. Rajpati filed a Regular Suit No.68 of 1995 in the Court of Civil Judge, Junior Division, Gonda against the opposite parties no.2 and 3 for cancellation of Will Deed dated 27.11.1998 alleged to have been executed by late Smt. Rajpati in favour of the opposite parties no. 2 and 3. During pendency of suit Rajpati died on 06.06.1999, whereupon the petitioner moved an application under Order 22 Rule 3 C.P.C. for being substituted as plaintiff in place of Smt. Rajpati on the basis of registered Will Deed dated 27.11.1998 executed in his favour by late Rajpati. Against the substitution application the opposite parties no. 2 and 3 filed objection, which was numbered as Ga/92 alleging therein that a Regular Suit No.904 of 1999 has already filed by them for cancellation of the Will allegedly executed by Smt. Rajpati in favour of the petitioner. The Regular Suit No. 904 of 1999 is still pending and till the said suit is not decided, the petitioner cannot be substituted as plaintiff on the basis of the said deed. The Trial Court rejected the substitution application and abated the suit vide order dated 27.01.2000 only on the ground that the validity of the Will Deed on the basis of which the petitioner was seeking substitution, is subjudice in the regular suit filed by the opposite parties no. 2 and 3. Against the order of the Trial Court the petitioner preferred a revision before the District Judge, Gonda, which was numbered as Revision No.57 of 2000 and was transferred for disposal before the IInd Additional District Judge, Gonda and dismissed by him by order dated 03.01.2004. The instant writ petition has been filed by the petitioner for quashing both the above noted orders. Learned counsel for the petitioner has submitted that reason given in the order dated 27.01.2000 for dismissing his substitution application is totally unsustainable. Learned counsel for the petitioner next submitted that once revisional court came to the conclusion that no appeal lies against the order of the trial court, it was incumbent upon the revisional court to have dismissed the revision as not maintainable instead of rejecting the same on merits. The failure of the revisional court to re-deem the illegality committed by the trial court has totally vitiated the order of revisional court. None has appeared to oppose this writ petition on behalf of the opposite parties. I have examined the submissions made by the learned counsel for the petitioner and perused the record. The only reason given in the impugned order for rejecting the substitution application filed by the petitioner and for refusing to set aside abatement of the suit in the impugned order is that validity of the Will Deed on the basis of which the petitioner is seeking substitution in the regular suit. In my opinion, the reason given by the court below for rejecting the substitution application is totally unsustainable and misconceived. The petitioner is seeking substitution as plaintiff in the suit on the basis of a registered Will Deed executed in favour of the petitioner and the substitution application cannot be rejected on the ground given in the impugned order. In view of the aforesaid, the writ petition is allowed. The orders dated 27.01.2000 passed by the Civil Judge, Junior Division, Gonda and 03.01.2004 passed by the IInd Additional District Judge, Gonda, as contained in Annexures-1 and 2 respectively to the writ petition, are quashed. The substitution application filed by the petitioner is allowed and the abatement of the suit is set aside and the suit is restored to its original number. There shall be no order as to costs.