MOHD AMIN Vs. YUSSOF SHAH

JUDGEMENT

(1.) THIS revision is directed against the order dated 10 -10 -1974 passed by the Sub Judge, Special Municipal (Mobile) Magistrate, Srinagar in Civil Suit entitled Yousuff Shah and another Versus Ghulam Rasool and others.

(2.) TWO applications one relating to the question of bringing the legal representatives of Ghulam Rasool the deceased defendant on record and the other under section 5 of the Limitation Act seeking condonation of delay in filing the first application came up for consideration before the learned trial Judge. The learned court allowed the second application under section 5 of the Limitation Act and condoned the delay caused in filing the application for substitution. It also ordered that the legal representatives of the deceased be brought on record. Briefly speaking the facts of the case are as under: -

(3.) A suit for possession and partition in respect of the subject matter of dispute was pending in the court of Sub Judge (C. J. M) Srinagar, The case was transferred to the court of Sub Judge Municipal (Mobile) Magistrate, Srinagar, by an order of the court. During the pendency of the transfer application in this court Ghulam Rasool one of the defendants died. The original file had been summoned by the High Court and was laying alongwith the application for transfer. It was admitted that Ghulam Rasool died on 5 -9 -1973 when the application for transfer was pending disposal in this court. An application for substitution of the legal representative of the deceased was made in the High Court. Ghulam Jelani, Mohd Amin Sons of the deceased and Mst Saira Bano were shown as legal heirs of the deceased. The 2 above -mentioned sons of the deceased were already on record as defendants and Mst. Saira Bano widow alone was to be substituted and impleaded as a party in the High Court. There was no controversy about their substitution. These legal representatives of the deceased were therefore brought on record Mr. M. A. Nehvi Advocate appeared on behalf of Mst. Saria Bano after the process of substitution was complete. This court thereafter ordered the transfer of the case from the flies of Sub Judge (C.J.M.) Srinagar to the Court of Sub Judge, Municipal Magistrate Srinagar, The parties were directed to appear before the transferee court on 2 -4 -1974, On 9 -5 -1974 one of the plaintiffs made an application in the trial court for brining the legal representatives of deceased on record in the suit file. This application was contested by the defendants on the ground that the same was barred by limitation. After recording the evidence in the case the plaintiff made an application under section 5 of the Limitation Act seeking condonation of the delay in making the application for substitution on the ground that the mistake was a bonafide one and was occasioned on account of the mistaken advice of counsel. Mr. P. L. Koul Advocate for the plaintiffs filed his own personal affidavit to the effect that he held a bonaflde view of law that there was no need to present a second application for substitution in the suit when one had already been made in the High Court during the pendency of the application for transfer, and the legal representatives of the deceased Ghulam Rasool had already been brought on record in those proceedings. The learned trial Judge after appreciating the evidence and after discussing law on the subject gave an elaborate judgment in favour of the respondents. He acceded to the argument of the respondents that the delay occurred in making application was under bonafide circumstances and that the same was not occasioned by any negligence on the part of the plaintiffs respondents. Aggrieved by this order the plaintiffs have come up in revision before this court.