Jugna Devi and Others vs IInd A.D.J.

S.U. Khan, J.—Heard learned Counsel for the parties.

All substitution applications are allowed.

This is tenants'' writ petition. Landlords respondents in their over anxiety lost precious 23 years during which this writ petition remained pending.

Since July 2006 onward, several orders have been passed by me in this writ petition directing the learned Counsel to inquire as to whether matter survived persuading the parties to compromise the matter, issuing notices on various substitution applications.

Original landlord Satkumari Bhattcharya since deceased and survived by original respondent Nos. 3 to 7 in the writ petition instituted suit for eviction (O.S. No. 958 of 1968) against original tenant Sarju Prasad since deceased and survived by the petitioners for his eviction and recovery of arrears of rent etc. Property in dispute is a part of house No. B 15/39 Varanasi and the said part consists of 2 pucca rooms and two tin shades. Rent is Rs. 24/- or Rs. 25/- per month. Suit was decreed on 21.7.1983 by XIV Additional Munsif Varanasi. Against the judgment and decree dated 21.07.1983 petitioners filed Civil Appeal No. 319 of 1983 (it appears that by that time original tenant had died). During pendency of appeal one of the appellants i.e. Sri Lakshaman Prasad died in July 1984. Substitution application was filed on 30.4.1986 by the legal representatives of late Sri Lakshaman Prasad which was accompanied by application for setting aside abatement and for condonation of delay in filing the same. Applications were supported by affidavit against which objections were filed. It is stated that no counter affidavit was filed by the landlord respondents in support of their objections. IInd A.D.J. Varanasi to whom the appeal had been transferred for disposal through order dated 03.05.1986 dismissed the substitution application after refusing to condone the delay in applying for setting aside the abatement and thereafter dismissed the entire appeal as incompetent. The order dated 03.05.1986 has been challenged through this writ petition.

Through the impugned order an extremely technical view of the matter has been taken in refusing to set aside the abatement. One of the grounds taken by the learned A.D.J. is that appeal had been adjourned about twenty times. The second reason is that actual date of death was not mentioned only month and year i.e. July 1984 were mentioned. The other reason given is that the widow of the deceased appellant stated that due to the death of her husband she was not in proper frame of mind to look after the litigation and she was also not aware of pendency of appeal, however, other appellants could file substitution application as they were members of the same family. It has also been stated that no reason has been mentioned as to why information of death was not given to the counsel and the Court earlier, within the period of limitation.

I do not agree with the reasoning given by the lower appellate court. Normally in substitution matters such strict view is not appreciable. In this regard reference may be made to the following authorities:

Nagina Singh v. Naga Singh 2002 (48) ALR 809 S.C.

PVTP Village v. Bhargan amma 2009(1)ARC 7(SC)

Moreover, after the death of tenant, all his heirs inherit the tenancy as joint tenants and in case of death of one of several joint tenants, other joint tenants may very well represent the estate of the deceased joint tenant. The learned Counsel for the landlord respondent has cited the following authorities:

1987(1) ARC 378 Kedar Nath Bose v. Vth A.D.J., Allahabad and Ors.

Bibijan and Others Vs. Murlidhar and Others,

2008 ACJ 1331 Bal Krishna Lohia v. Smt. Radha Devi and Ors.

In none of these authorities, substitution application had been filed. The third authority goes against the landlord. The first two authorities did not relate to landlord tenant matter.

Accordingly, writ petition is allowed impugned order and decree are set aside.

Substitution application setting aside abatement application and delay condonation application filed by the legal representatives of Laxmi Prasad before the lower appellate court are allowed on payment of Rs. 1000/- as costs. (In the aforesaid authority of Naga Singh it has been held that in case of delay in filing substitution application, opposite party should be compensated by award of costs). Cost shall be deposited before lower appellate court on the next date which is fixed as 15.09.2009. Both the parties are directed to appear before lower appellate court on 15.09.2009 along with certified copy of this judgment.

Fresh substitution application in respect of those parties who have died during pendency of this writ petition and have been substituted by their legal representative should also be filed by the next date before the lower appellate court.

The lower appellate court shall make all efforts to decide the appeal very very expeditiously.

During pendency of appeal, eviction of the tenants shall remain stayed provided that w.e.f. August 2009 onward they deposit rent @ Rs. 750/- per month before the lower appellate court by 7th of each succeeding month for immediate payment to the landlord respondent. However, rent for the month of August 2009 may be deposited by September 15th, 2009 the date which is fixed through this judgment for appearance of the party before the lower appellate court. Thereafter the rent must be deposited by 7th of each succeeding month. In case of two defaults stay order shall stand automatically vacated. Any stay order which was granted by the lower appellate court stands modified.

This direction is being issued in view of Supreme Court authority of Atma Ram Properties (P) Ltd. Vs. Federal Motors Pvt. Ltd.,