CHHOTELAL Vs. BACHHILAL

JUDGEMENT

(1.) THIS is a miscellaneous appeal u/O XLIII rule 1 (k) of the Code of Civil Procedure against the order dated 19th November, 1992 passed by the IV Additional Judge to the Court of District Judge, Bhind in Civil Appeal No. 3 -A/87, dismissing the application of the appellant u/O XXII rule 3 readwith Sec. 151 C.P.C. and section 5 of the Limitation Act as barred by time and thus, dismissed the appeal as abated.

(2.) IN a suit instituted by the respondents No. 1 and 2 for eviction of the tenant, a decree was passed, aggrieved of that an appeal was preferred u/S. 96 of the C.P.C. During the pendency of the said appeal, the tenant who was the sole appellant died on 30.11.88. The tenant was a bachelor. One Mata Prasad applied on 24.2.89 for substituting his name as legal representative being his heir and also having a will in his favour duly executed by the deceased -appellant, but that application was dismissed on 1.7.89. A petition No. 870/89 was preferred by said Mata Prasad which was allowed by this Court vide order dated 27.4.92 directing the appellate Court to hold an inquiry and to dispose of the application in accordance with law within a period of two months. After the inquiry the application was dismissed. Thereafter, the present appellant who is a disabled person and is residing in the village and is a real brother of the tenant Baijnath, applied for substitution. His application was also dismissed without holding any inquiry and without dealing it on merits on the ground that the appellant ought to have applied in the writ petition before the High Court. This is the order which is under challenge.

(3.) CONSIDERING all the facts and circumstances and without expressing any opinion on merits I am of the opinion that the appellate -Court has committed an illegality in not holding the enquiry for determining the question of legal representatives and on the question of condonation of delay for setting aside the abatement therefore, the order impugned is set aside and the case is sent back to the appellate Court to decide the application for substitution of the legal representatives in accordance with law, but within a period of two months. The parties shall appear before the appellate Court on 10th of May, 1994, for that purpose they shall not be noticed as they have been noticed here. Record of the Court below be sent back posthaste alongwith a copy of this order so as to reach before the said Court on or before 9th of May, 1994. The appeal is disposed of accordingly.