ISRARUL HAQ Vs. SPECIAL ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) HAMID Ahmad who was landlord of the accommodation in question succeeded in the release proceedings under section 21 of the U. P. Act XIII of 1972. The tenant Israrul Haque who is petitioner in the present writ petition filed appeal against the order of release. During the pendency of the appeal' HAMID Ahmad landlord died on 8-12-1986 leaving behind his widow Shrimati Subra respondent no. 2 in the present writ petition. As is provided in section 34 (4) of the Act, the appeal could continue after bringing on record the legal representatives of the deceased- respondent. Period for making application for substitution application of the legal representatives of a deceased party in the Rent Control proceedings, as prescribed by rule 25 of the Rules framed under the said Act, is one month from the date of the death. This means that an application for substitution of the heirs of deceased HAMID Ahmad ought to have been moved by 7-1-1987. The appellant-tenant, however, moved application for substituticn on 6-3-1987 admitting therein that HAMID Ahmad had died on 8-12-1986. Copy of this application is Annexure 1. This application was unaccompanied by any application seeking condition of delay. An objection was filed by the respondent Shrimati Subra on 19-11-1987/6-1-88 stating that the substitution application was beyond time and that the appellant knowingly and deliberately did not move substitution application within the prescribed period. It is after this objection of the respondent that the appellant moved application under section 5 of the Limitation Act (Copy Annexure 3) pleading that he was ignorant about the legal position as to the correct period within which substitution application could be moved and that the substitution application had been moved by him under advice from a junior local Advocate of Gonda Shri K. K. Singh and that Shri K. K. Singh had advised that substitution application could be moved within three months from the date of the death. This application was supported by an aflSdavtt of the appellant-petitioner. Respondent again filed objection refuting the correctness of the contents of the application under section 5 of the Limitation Act.

(2.) LEARNED Additional District Judge, Gonda, vide his order dated 23-8-1989, rejected the application under Section 5 of the Limitation Act and held that the substitution application was not moved within the prescribed period. Accordingly, the substitution application was also rejected. LEARNED Additional District Judge held that the petitioner himself has been doing pairvi in the appeal and his plea that Shri K E. Singh, Advocate had advised him about the period of limitation for the purpose is an after-thought. It was pointed out that signatures of Shri K. E. Singh Advocate were not there on the substitution application and the same was not according to law inasmuch as there was absence of verification clause. Another fact referred to in the order is that the application under section 5 of the Limitation Act was moved on 3-5-1988 only when objections had been filed to the substitution application by the respondent. In other words, the substitution application was rejected by the learned appellate Court with the finding that the appellant had failed to satisfactorily explain the delay and that the plea raised was not bona fide.

(3.) IN the present case, the delay is sought to be explained on the ground that Shri K. K. Singh, a junior counsel, had advised that the period for moving a substitution application was three months from the date of his death. This implies the conteniion that the petitioner himself was unaware of the legal position. True, that there was no affidavit of Shri K. K; Singh, Advocate to state that he had tendered the advice as to the period of limitation. That by itself, however, is not sufficient to reject the plea as untenable. Learned Civil Judge in rejecting the application under section 5 of the Limitation Act appears to have been influenced by the fact that no application under section 5 was moved along with the substitution application and it was only after the objection filed by the opposite party that this application under section 5 of the Limitation Act was moved supported by the affidavit. The inference that the plea was an after-thought and was not correct may be difficult to be shared. On the other hand, it strengthens the petitioner's plea that he was unaware of the legal position and he moved the substitution application under the impression that the period of limitation was three months as otherwise application under section 5 of the Limitation Act would have been filed along with substitution application. Learned Civil Judge further found that the application for substitution was not according to the rules inasmuch as there was no verification clause therein. That would hardly be a ground for rejection of the application under section 5 of the Limitation Act. This absence of verification clause is explained by the fact that the substitution application was moved by the petitioner himself. He may be right in his contention that he did so after consulting Shri K. E. Singh, Advocate though he did not move the application through Shri K. K. Singh and that is the reason why it was signed by the petitioner himself. The objection of the respondent that the substitution application was moved after the expiry of the period of limitation deliberately and consciously cannot be accepted by any process of reasoning, because the petitioner was not going to be benefited by making the application after the expiry of the prescribed period.