GH HASSAN WANI Vs. BASHIR AHMAD WANI

JUDGEMENT

(1.) THIS civil revision by the defendant is directed against the order of the Subordinate Judge, Handwara dated 7th July, 2004 in suit titled Bashir Ahmad Wani v. Mst. Sajida allowing the plaintiffâ„¢s application for substitution of the legal representatives of defendant no.1 and rejecting the application of the petitioner to dismiss the suit as having abated. The facts of the case so far as relevant for disposal of this civil revision are as follows:

(2.) RESPONDENT no. 1, Bashir Ahmad Wani, filed suit for declaration and injunction against Mst. Sajida Begum seeking declaration that he is the owner of suit land by virtue of adoption by Shamas -ud -Din Wani and his wife Mst. Sajida. Sajida Begum denied the plaintiffâ„¢s case of adoption. She further stated that she had executed an irrevocable deed cancelling the alleged adoption and another deed gifting part of the suit property to Ghulam Hassan Wani, the petitioner herein. In the circumstances, the plaintiff filed application for amendment of the plaint and also impleadment of the petitioner which was allowed vide order dated 29th August, 1998. The petitioner challenged the said order in civil revision no. 146/1998 in this Court. In the meantime, on 9th August, 1999, Sajida Begum had died issueless. Pursuant to order dated 23rd August, 1999 in CR no. 146/1998 the petitioner filed application for substitution of her legal representatives. By order dated 20th November, 2000 the application was allowed and Sayeeda Begum, Khatkija Begum, Habla Begum, Rafiqa Begum and Haleema Begum were substituted as legal representatives of Sajida Begum. As, however, Mst. Sayeeda Begum had also died issueless in the meantime, rest of the aforesaid legal representatives of Sajida Begum alone were brought on record. I shall advert to the said order dated 20th November, 2000 again later in this judgment. It is relevant to mention here that earlier, on 31st January, 2000, the plaintiff, Bashir Ahmad Wani, too had filed application vide CMP no.3/2000 for substitution of said Haleema Begum besides himself as adopted son of Sajida Begum on which no order was passed. The civil revision finally was disposed of on 27th December, 2002. A learned Judge of this Court declined to interfere with the order impugned. As regards the death of Mst. Sajida, the learned Judge observed, what is its effect shall be dealt with by the trial court . After the records of the case reached the trial court, on 24th March, 2003 application was filed by the plaintiff for substitution of the legal representatives i.e. Khatija Begum and others as legal representatives of Mst. Sajida. The petitioner filed objections opposing the prayer on the ground that the application for substitution was time barred and there was no application for condonation of delay. On 19th June, 2003 the court deleted the name of Mst. Sayeeda Begum but did not pass any further order. On 5th August, 2003 the defendant -petitioner filed application to dismiss the suit as having abated on account of non -substitution of legal representatives of Sajida. By the order impugned the court below rejected the said application of the petitioner and allowed the plaintiffâ„¢s application for substitution. The court noticed that the legal representatives of Mst. Sajida had already been substituted by this Court in the civil revision, and observed that the only point for consideration was whether Mst. Khatija alone could be arrayed as legal representative of Mst. Sajida or the remaining three i.e. Mst. Habla, Haleema and Rafiqa - said to be step -sisters - are also to be substituted alongwith Mst. Khatija. Observing that for proper adjudication of the suit it was necessary to implead them also, the court allowed the prayer for substitution of all of them.

(3.) MR . M.A. Qayoom submitted that the court committed error in relying on the order of substitution passed by this Court in the civil revision at the instance of the defendant -petitioner. The application was filed by the petitioner pursuant to the courtâ„¢s order and it did not absolve the plaintiff of his responsibility to seek substitution of the legal representatives in the trial court. In any view, the substitution was only for the purpose of civil revision. Whereas substitution in an appeal may hold good in the trial court and it may not be necessary to substitute the legal representatives once again, any such order in civil revision against an interlocutory order cannot be extended to cover the suit and, therefore, the order of substitution in civil revision was of no avail to the plaintiff and the court below committed error in relying on it. Counsel on facts submitted that application for substitution was time barred without an application for condonation of delay and, therefore, the suit having abated by passage of time, the legal representatives of the deceased defendant could not be substituted and the suit should have been dismissed as abated. Lastly, the counsel submitted that, in view of the stand of the defendant -petitioner that Mst. Habla, Haleema and Rafiqa were step -sisters and not real sisters like Mst. Khatija, enquiry should have been held in terms of order XXII rule 5 of the Civil Procedure Code and without such enquiry they could not be substituted.