Babunandan vs Board of Revenue U.P.Allahabad and Others

R.K. Singh, J.—Heard Mr. Ajay Kumar learned Counsel appearing for the petitioner Babunandan and Mr. Sankatha Rai, learned senior Counsel in opposition appearing for the opposite party No. 3 Ram Lakhan.

The prayer in the writ petition is to quash the orders dated 14896 and 21693 (Annexures 1 and 7 to the writ petition) besides the other reliefs.

The facts are being noted in brief to appreciate the point involved in this writ petition. A suit under Section 229B of the Z. A. and L.R. Act was filed by Solkaran, the father of the petitioner Babunandan; that suit was decreed ex pane. A restoration application was filed by respondent No. 3 Ram Lakhan, which was dismissed. Against that order Ram Lakhan filed a revision before the Additional Commissioner, Varanasi which was allowed by order dated 12881. Salkaran has died in the meantime. Babunandan and others filed revision before the Board of Revenue against the order of the learned Additional Commissioner which was dismissed on 15792 as a result of which the suit stood restored and the proceedings were taken afresh before, the trial Court. On 31792 Ram Lakhan moved an application praying that the status quo should be maintained at the spot. On 3892 objection was raised on behalf of the petitioner Babunandan and others. Babunandan and others filed application for substituting their names in place of their deceased father on 20593 which was rejected giving cause of action for this writ petition.

The argument advanced by Mr. Ajai Kumar is that the interest of justice has suffered a lot by rejection of their substitution application by the impugned orders Annexures I and VII He has argued that respondent No. 3 had already substituted the petitioner Babunandan as a party in the appeal which was allowed and which order was confirmed by the revisional Court. In those proceedings Babunandan was a party at the instance of respondent No. 3 Ram Lakhan. According to Mr. Ajai Kumar the proceedings in appeal and revision were in continuation of the same proceedings which was arising out of ex pane decree in the suit under Section 229B of Z.A. and L.R. Act. Therefore, according to Mr. Ajai Kumar there was no legal obstacle in bringing the petitioner on record in place of his deceased father when the suit was taken afresh on remand. According to Mr. Ajai Kumar delay in filing of the substitution application is not of fatal consequence and so his prayer for condonation of delay under Section 5 of the Limitation Act should have been allowed and the abatement, if any, should have been set aside giving an opportunity to the petitioner to pursue the suit.

Opposing this argument Mr. Sankatha Rai, learned senior Advocate has argued that the restoration application was not in continuation of the suit and that the delay must be explained satisfactorily. For his help Mr. Sankatha Rai has placed reliance on the case of Union of India v. Ramcharan (deceased) through his legal representative, AIR 1964 SC page 215, and the case ofGopendra Pratap Singh v. Onkar Singh, 1984 Revenue Judgment . page 155 paragraph 17. There is no dispute on this long proposition that delay in filing the substitution application should be explained satisfactorily. The facts of the present case disclose that the petitioner was already appearing before the Court below and he was opposing the prayer of maintenance of status quo on the land and he was already before the Court, simply his name was not appearing in place of his deceased father. The Courts below have taken a technical ground that substitution application was filed after inordinate delay. Of course, the substitution application was filed on 2851993 for the first time alongwith the delay condonation application on the same date under Section 5 of the Limitation Act. But it is also a fact that the petitioner was brought on record on the file of appeal filed by Ram Lakhan in place of his deceased father as a party respondent and the petitioner was appearing to oppose the prayer for maintenance of status qua in the Court below. Therefore, the Court below had already accepted him as a party in that suit. His objection against the prayer for maintenance of status quo was already pending and considered by the Court below in the suit afresh on record. Therefore, it was simply a technical ground taken by the Courts below to shut the doors of the Court for the petitioner who was a decreeholder through his deceased father which was set aside and the matter was being heard afresh. This Court feels that by rejecting his prayer for condonation of delay and substituting him as a party in place of deceased plaintiff, will be denying justice to him. In such cases the Court is not justified in applying the technical ground that the substitution application was filed after inordinate delay, in the interest of justice this delay condonation application under Section 5 of the Limitation Act should have been allowed and the delay should have been condoned and the substitution as prayed for should have been allowed. The plaintiff who was had to the knowledge of the Court through substitution application filed by Ram Lakhan himself during the appeal was a very strong ground for bringing the petitioner on record in place of his late father Salkaran.

Interference under Article 226 of the Constitution of India, in the interest of justice in the present case, according to the Court, is most suitable. Therefore, the writ petition is allowed at the admission stage itself, and the impugned orders Annexures1 and VII to the writ petition are quashed. The Courts below is directed to substitute the petitioner as a party plaintiff giving him chance for hearing so that justice on merit may be coming in the suit.