MST FAKHRUNS Vs. HAFIZULLAH ALIAS KALLOO

JUDGEMENT

(1.) By means of this petition under Article 226 of the Constitution of India, petitioners pray for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 29.3.1982, whereby trial court allowed the application filed by the contesting respondents for substitution after setting aside the abatement and the order dated 5.8.1982, whereby revision filed by the petitioners against the order of trial court was dismissed by the revisional court.

(2.) The relevant facts giving rise to the present petition are that the respondent Nos. 1 to 6 filed a suit for possession against late Sajjad Ali, father of the petitioners. During pendency of the said suit Sajjad died on 14.5.1974. An application to substitute his heirs (petitioners) was filed on 19.7.1974, i.e., within the time prescribed for the same. The said application was, however dismissed for default and the suit was dismissed as to have abated on 17.10.1975. Thereafter, the contesting respondents have filed an application under Order IX. Rule 9, C.P.C. for recalling of the order dated 17.10.1975. Against the said application, an objection was filed by the petitioners pleading that the said application was legally not maintainable. It was on 21.10.1975 an application for amendment of application filed under Order IX, Rule 9, C.P.C. was filed praying that said application be treated as an application for setting aside abatement. This application was also objected to and opposed by the petitioners. The trial court, however, allowed the said application, recalled the order dated 17.10.1975 and also allowed the substitution application vide order dated 27.5.1978. Aggrieved by the said order, petitioners filed a revision No. 581 of 1978 before this Court under Section 115, C.P.C.. This Court did not find any jurisdictional error in the order dated 27.5.1978 and dismissed the revision by its judgment and order dated 7.7.1960 with the following observations : "The trial court will, however, decide whether the abatement of the suit is liable to be set aside for the reasons stated in the application dated 21.10.1975 as amended by the application dated 29.1.1977."

(3.) On the basis of the aforesaid observations, trial court heard the parties on the question of abatement of the suit, and ultimately set aside the abatement and allowed application by its judgment and order dated 29.3.1982. Challenging the validity of the order passed by the trial court dated 29.3.1982, petitioners filed revision before the Court below. The revision filed by the petitioners was also dismissed by the Court below by its Judgment and order dated 5.8.1982, hence the present petition for reliefs noted above.