Gurbux Singh vs State of U.P.

V.K. Bist, A.C.J.

Heard.

This petition was filed before the Allahabad High Court in the year 1990. After creation of State of Uttarakhand, no notice was sent to the petitioner about transfer of the case, to this Court. The matter was listed on board on 16.12.2003 and it was dismissed for want of prosecution. The petitioner died on 28th November, 2013.

It is stated in the delay condonation application that since the applicants are mainly residing abroad, they have their caretaker Mr. Rajveer Singh, who got information in the 3rd week of December, 2013 that the matter in question was decided by this Court. Upon gathering information, the caretaker contacted his counsel at Nainital and made inquiry about the petition and he came to know about the dismissal of the present petition. Caretaker Mr. Rajveer Singh is also power of attorney of the applicants. During the course of interaction with the counsel, it came to know that since some of the L.Rs. of the petitioner are in U.S.A. and Canada, hence their power of attorney would be required from them to proceed further in the matter. Thereafter, power of attorney were obtained by the caretaker, which consumed some more time and as soon as all the power of attorneys of the applicants/L.R''s of the petitioner were received by the caretaker, he sent to them to his counsel. Due to this reason, the delay was cause in filing restoration application.

Learned Standing Counsel for the State opposed all the applications by filing objection (IA No. 2245/14) on the ground that day-to-day delay has not be explained and there is no justification for condoning the delay, inasmuch as, the applications have been filed through the power of attorney of the applicants, which is not permitted under the law. In so far the application seeking substitution is concerned, counsel for the State raised objection with the averment that in the Will, which is said to have been executed, the land in question was given to the grandson, therefore some of the applicants cannot be substituted.

I have considered the submissions of the counsel for the parties.

So far, the delay in filing restoration application is concerned, I find that after creation of State of Uttarakhand, no notice was ever sent to the petitioner about the pendency of the case before this Court, which was mandatory. There was no occasion for the petitioner to know about the pendency of the petition before this Court. The Registry also did not send any notice on administrative side. Therefore, in my view, the ground that the petitioner was not aware about the pendency of the case before this Court, is sufficient to condone the delay caused in filing the restoration application.

As far as, the object of the respondent that the applications have been filed by the applicants through their power of attorney is concerned, the same is misconceived. Application can be filed by a person through his/her power of attorney. In the case in hand, the applications have been moved by the applicants through their power of attorney and in this way no illegality has been committed in any manner.

So far the objection relating to execution of the Will in favour of grandson is concerned, since all the applications have jointly been filed on behalf of the sons as well as grandson of the deceased, I find no illegality in moving joint applications. Let grandson may also participate in the proceedings and may demonstrate his stand.

Considering the fact that ground for condonation of delay in filing restoration application is genuine, I allow all the applications moved by the petitioner/applicants. The delay in filing the applications is hereby condoned. Objection filed by the respondent nos. 2 & 3 stands disposed of accordingly.

Writ petition is restored to its original number.

Two weeks time is granted to the petitioner for carrying out the necessary amendment.