GITA DEVI Vs. YATINDRA NATH SINGH

JUDGEMENT

(1.) Heard Mr. Ashok Kumar, learned counsel for the petitioner and Mr. Chandrakant, learned counsel for the opposite party. This application is directed against the order dated 14.12.2009 passed by learned Additional District Judge-IV, Siwan whereby learned Judge has been pleased to dismiss the Misc. Appeal No. 12 of 2002 filed by the petitioner and affirm the order dated 17.10.2001 passed in Misc. Case No. 10 of 1993 whereunder the application filed by the petitioner seeking substitution, had been rejected.

(2.) Facts of the case briefly stated is that Title Suit No. 244 of 1986 was filed by the opposite party herein, seeking specific performance of contract as against one Bhola Pandey (since deceased) with regard to the suit property on the basis of an agreement for sale stated to have been executed on 28.10.1984. The suit was decreed ex parte on 18.9.1987 by the learned Sub-Judge, Siwan. An Execution Case No. 24 of 1987 followed and a sale deed was executed through the process of the Court. An application under Order 9 Rule 13 of the Code of Civil Procedure (hereinafter referred to as the 'Code') was filed by the said Bhola Pandey giving rise to Misc. Case No. 5 of 1989 and which was dismissed for non-prosecution. Misc. Case No. 10 of 1993 filed for restoration of Misc. Case No. 5 of 1989 was also dismissed when the learned Sub-Judge refused to restore the Misc. Case No. 5 of 1989. The said Bhola Pandey moved this Court in C.R. No. 1990 of 1994 and which was allowed by order passed on 3.11.1995 requiring the trial Court to consider the restoration application on merits and not on technicality. As a consequence of the order passed by this Court, the proceeding in Misc. Case No. 10 of 1993 filed for restoration of Misc. Case No. 5 of 1989 revived but while the proceeding was pending, the said Bhola Pandey deceased. The date of his death is not known to this petitioner who claims purchase from the said Bhola Pandey, of the suit land which was subject matter of Title Suit No. 244 of 1986 by virtue of three sale deeds dated 14.2.1984 and one registered sale deed dated 18.1.1985. The petitioner claiming right over the suit property by virtue of the sale deeds aforementioned prayed for substitution by filing an application on 16.6.2001 and which was objected to by the opposite party who filed his rejoinder on 28.6.2001 mentioning therein that the case had abated by the death of Bhola Pandey two years ago. The Sub-Judge-I, Siwan by order dated 17.10.2001 dismissed the Misc. Case No. 10 of 1993 holding the same as having abated. The petitioner filed M.A. No. 60 of 2002 before this Court and this Court by order dated 11.3.2002 while returning the memo afforded liberty to the petitioner to file the appeal before the appropriate forum. It is thereafter the appeal was filed before the Court below and the learned Additional District and Sessions Judge-IV, Siwan by the impugned order dated 14.12.2009 was pleased to dismiss the Misc. Appeal No. 12 of 2002 while observing in paragraph 7 of the impugned judgment and order that the appeal of the petitioner did not contain the date of death of Bhola Pandey, the original petitioner; that there was no application filed for setting aside the abatement under Order 22, Rule 9 of the Code or a petition for condonation of delay in moving the Court below and that the petitioner had not submitted any document to demonstrate a derivative title to the suit property by virtue of the sale deeds. The orders of the Court below have been questioned in the present proceedings.

(3.) The Ashok Kumar, learned counsel for the petitioner has submitted that the learned Court below have misdirected itself in holding the proceedings as having abated when in fact, the application for substitution had been filed by the petitioner within the period of 3 years as stipulated under Article 137 of the Limitation Act and which is the proper provision for maintaining an application for substitution arising from a miscellaneous application as also held in a Bench decision of this Court (Om Ghand v. Sheobrat Kuer & Ors., 1990 1 PLJR 545). It is thus submitted that where the opposite party himself had admitted that the said Bhola Pandey had deceased two years prior to the filing of the substitution petition, it by itself proved that the substitution was within a period of 3 years prescribed under Article 137 and thus was within time. It is thus submitted that once the said opinion of the Court below is removed then the petitioner steps into the shoes of the original petitioner Bhola Pandey to maintain the restoration application.