VIDHYA PRAKASH Vs. RANIDAN

JUDGEMENT

(1.) THIS revision petition has been preferred against the order dated 24-2-86 passed by the District and Sessions Judge, Jaipur City, Jaipur condoning the delay in the substitution of legal representatives in an appeal filed by the non-petitioner. The learned District Judge has also held that the application which was moved for substitution of legal representatives could be treated as an application for setting aside the abatement.

(2.) A few facts may be mentioned in order to appreciate the legal point which arises before me. A suit for eviction was filed by one Gokul Devi against the non-petitioner on the ground of personal necessity and this was decreed on 24-5-85 by the Additional Civil Judge No. 4, Jaipur City. The non-petitioner preferred an appeal against this decree and during the pendency of this appeal, Gokul Devi died on 18-8-85. The date of hearing in the appeal was 18-10-85 and on that date the non-petitioner moved an application that Gokul Devi had died and that she had not left behind any children. A prayer was made that the decision of the court below be set aside. On this very date the counsel for Gokul Devi moved an application stating that Gokul Devi had died no 18-8-85 and that her legal representative was Vidhya Prakash. The non-petitioner, who was the applicant before the District Judge, did not take any action on this information within 90 days from the date of the death of Gokul Devi and on 17-12-85 he moved an application that it was alleged by the other side that Gokul Devi had executed a will in favour of Vidhya Prakash which was not admitted and without prejudiced to his rights the name of Vidhya Prakash be substituted in place of deceased Gokul Devi. A line was added that the delay in moving the application may be condoned. On this very date Vidhya Prakash, the present petitioner, moved an application that he was the legal representative of Gokul Devi by virtue of a will dated 23-12-79 and this fact was within the knowledge of the non-petitioner who did not bring him on record within the time of 90 days allowed by law and as such the appeal stands abated and it should be ordered to have been abated.

(3.) THE facts, as discussed above, clearly go to show that the non-petitioner had knowledge about the date of death of Gokul Devi and also about the fact as to who could be her legal representative. Nothing has been shown that he was prevented by any sufficient cause from moving an application for substitution. In the case of State of Gujarat Vs. Sayed Mohd. Baquir El Edross (1), it has been held that where no cause is shown for condonation of delay for setting aside the abatement and the appeal is dismissed in view of the abatement then the delay in moving the application for bringing legal representatives on record cannot be condoned.