MADAN CHAND Vs. URBAN IMPROVEMENT TRUST

JUDGEMENT

(1.) THIS matter comes up for the consideration of the application of Shri Vinod Chandra, the alleged legal representative of the appellant Shri Madan Chand for setting aside abatement and impleading him in place of the deceased Madan Chand.

(2.) THE suit for injunction restraining the Urban Improvement Trust (U.I.T.) from letting out the land in dispute and also restraining the other defendant Shri Puran Singh from doing anything which might diminish the plaintiff's right of way, air, light, drainage etc. and directing the U.I.T. to sell this land to the plaintiff, had been dismissed by the trial court and the plaintiff's appeal had also failed. The plaintiff has, therefore, come up in' second appeal. The sole plaintiff -appellant Shri Madan Chand admittedly died on 22 -5 82. The present application has been filed on 1 -3 -83. The ground set forth for not bringing the legal representative on record within time, and for setting aside the abatement is that the applicant Shri Vinod Chandra Yati, who is the only chela and legal representative of the deceased did not know of the pendency of this appeal till 6 -3 -83 when he was informed by one Shanker Lal Goel that such a matter was pending before the High Court Thereupon he sent one Shri Prabhu Lal to contact Shri Dalpat Singh Shisodia, Advocate and to find out what was to be done in the matter. He was informed by a telegram by Shri Prabhu Lal to reach Jodhpur immediately. He received this telegram on 8 -3 -83. He left for Jodhpur on 9 -3 -83 reaching here on the 10th and after making necessary enquiries, filed an application on 11 -3 -83. Thus according to the petitioner, there was sufficient cause for settirg aside the abatement. This application has been supported by the affidavit of the petitioner as well as Shri Prabhu Lal. The letter said to have been sent by the petitioner along with Shri Prabhu Lal to his learned Counsel Shri Dalpat Singh Shisodia has also been filed along with these affidavits. The respondents contested the application. They denied the fact that the applicant was the legal representative of the deceased Madan Chand in respect of the suit property. According to them, he was a chela only in respect of the Upasara They also denied that the petitioner had no knowledge of the pendency of this appeal till 6 -3 -83. According to them, he was in constant contact with bis counsel and had the knowledge of this suit from the very beginning. In support of the reply, Puran Singh respondent has filed his affidavit.

(3.) THE fact that abatement has already taken place, is not in dispute. The question, therefore, is whether there are sufficient grounds for setting aside the same. The applicant Shri Vinod Chandra claiming to be the only legal representative of the deceased Madan Chand alleges to have no knowledge of this appeal till 6 -3 -83 when his neighbour Shri Shanker Lal had told him about it and had asked him to contact Shri Dalpat Singh, Advocate. Now, in my opinion, this contention of the applicant on the face of it appears to be unbelievable. In his affidavit, the applicant Shri Vinod Chandra has stated that Shri Shanker Lal bad informed him about the pendency of this appeal on 6.3.83 whereupon he sent Shri Prabhu Lal to Jodhpur in order to meet Shri Dalpat Singh and he had also sent a letter along with Shri Prabhu Lal addressed to Shri Dalpat Singh. Now this letter, which has been filed by the applicant himself along with his own affidavit and the affidavit of Shri Prabhu Lal belies this fact that he had come to know of the pendency of the appeal only on 6 -3 -83 because this letter is dated 5 -3 -83. The contents of this letter clearly show that at least On 5 -3 83, the petitioner had knowledge of the pendency of the appeal and, therefore, this statement that he came to know of the pendency of the appal on 6 -3 -83 is apparently wrong. That being so, no reliance can be placed upon the affidavit filed by the applicant to the effect that he had no knowledge of the appeal before 6 -3 83. The corollary is inevitable that he could have had knowledge of its pendency much before the alleged date. It cannot be said with certainty that he had no knowledge of the pendency of the appeal even before 5 -3 -83 merely because the letter has been written on 5 -3 -83. In this letter dated 5 -3 -83, the applicant has, of course, mentioned the date of the death of Shri Madan Chand but he has not stated that he was not in the know of the pendency of the appeal. Therefore, it cannot be accepted that the petitioner had no knowledge of the pendency of the appeal till 6 -3 -83 or for the matter of that till 5 -3 -83.