Anwari Begum and Others vs 1st Additional District Judge and Others

R.H. Zaidi, J.—By means of present petition the Petitioners pray for a writ, order or direction in the nature of certiorari quashing the order dated 17.8.1996 passed by Respondent No. 1 dismissing the application filed by the Petitioners for substitution of heirs of late Babban, the revisionist, in the Court below.

It appears that the suit for ejectment and recovery of rent was filed by the contesting Respondent No. 2 on the ground of default. The suit was decreed by the trial Court by its judgment and decree dated 26.8.1993. Challenging the validity of the said judgment and decree a revision u/s 25 of the Provincial Small Cause Courts Act was filed which is pending. During the pendency of the said revision, revisionist Babban died leaving behind the Petitioner and Respondent Nos. 6 and 7. The death of Sri. Babban took place on 3.5.1996. The Petitioners filed the application for substitution of his heirs in place of Babban on 31.7.1996. The aforesaid application was rejected by the Respondent No. 1, relying upon the provisions of Rule 25 of the rules framed under the U.P. Act No. XIII of 1972 and holding that the same was not filed within time prescribed under the said Rule, by its order dated 17.8.1996. The Petitioner, as stated above, has challenged the said order by means of the present petition.

I have heard the learned Counsel for the Petitioner and the learned Counsel for the Respondent.

Learned Counsel for the Petitioners vehemently urged that the order passed by the Court below is and without Jurisdiction, inasmuch as provisions of Rule 25 framed under the aforesaid Act had no application in the present case. Learned Counsel for the contesting Respondent, on the other hand supported the impugned order and contended that the substitution application was rightly dismissed by the Court below.

I have considered the submissions made by the learned Counsel for the parties.

The suit for ejectment and recovery of arrears of rent was filed under general law before the Judge Small Causes Court, and not under the Provisions of the said Act. The aforesaid rules as it is evident from the same were framed u/s 34 of the Act. Section 34 of the Act provides the power of various authorities and procedure to be followed by them. The authorities are the District Magistrate, the Prescribed Authority or any (appellate or revising authority) for the purposes of holding any inquiry or hearing (any appeal or revision) under the said Act. The S.C.C. suits are entertained and decided by the Judge Small Cause Courts and not by the said authorities constituted under the Act.

The limitation for filing the application in a suit for substitution of heirs of the deceased Plaintiff or Defendant under Article 120 of the Limitation Act is 90 days. The application for substitution was, therefore, filed within the prescribed period. There was no question of delay involved. The Court below has committed an error in rejecting the application filed by the Petitioner. The order passed by the Court below therefore, is liable to be quashed.

The writ petition succeeds. The order dated 17.8.1996 is quashed. The substitution application is allowed and the Petitioners who are heirs and legal representatives of Sri. Babban shall be brought on the record of the revision. It is, however, under the facts and circumstances of the present case, observed that the revision shall be decided expeditiously within 3 months from the date a certified copy of this order is produced before him.