Kishori Devi vs Masi Charan

S.P. Mehrotra, J.—The present Second Appeal was filed by Smt. Kishori Devi (plaintiffappellant) through Sri Rajesh Tandon, Advocate (as he then was).

It appears that in view of the elevation of Sri Rajesh Tandon to the Bench of the Uttranchal High Court, the Registrar (Confidential) by his order dated 2582005, directed that notice be issued to the plaintiffappellant by Registered Post A.D. to engage another Counsel.

It further appears that pursuant to the said order dated 25 82005, notice was issued to the plaintiffappellant by Registered Post A.D.

The Office submitted its Report dated 1552006, inter alia, stating that neither Undelivered Cover nor Acknowledgment Due Card in respect of the Registered Post, wherein the said notice had been sent to the plaintiffappellant, was received back.

The said Report was reiterated by the Office in its Report dated 2352006.

It further appears that Civil Misc. (Abatement) Application No. 67701 of 2005 has been filed on behalf of the defendant respondent No. 1.

It is, inter alia, stated in paragraph No. 3 of the affidavit accompanying the aforesaid Abatement Application that the sole plaintiffappellant (namely, the said Smt. Kishori Devi) had died on 18102000, but till date no application has been filed by the heir and legal representative of the said Smt. Kishori Devi (plaintiffappellant) for being brought on record.

In view of the averments made in paragraph No. 3 of the affidavit accompanying the aforesaid Abatement Application, the Court by its order dated 1652006, directed the Office to submit its Report as to whether any Substitution Application had been filed on behalf of the heir) and legal representatives of the said Smt. Kishori Devi (plaintiffappellant) for being substituted in place of the said smt. Kishori Devi (plaintiff appellant).

Pursuant to the said order dated 1652006, the Office has submitted its Report dated 2352006.

A perusal of the said Report dated 2352006 shows that no Substitution Application has so far been filed on behalf of the heirs and legal representatives of the said Smt. Kishori Devi (plaintiffappellant) for being substituted in place of the said Smt. Kishore Devi (plaintiffappellant).

It is true that notice to engage another Counsel pursuant to the said order dated 2582005 passed by the Registrar (Confidential) was sent addressed to the said Smt. Kishori Devi (plaintiffappellant), who, as per the averments made in paragraph No. 3 of the affidavit accompanying the aforementioned Abatement Application, had already expired on 18102000.

However, in view of the fact that the heirs and legal representatives of the said Smt. Kishori Devi (plaintiff appellant) have not come forward for filing Substitution Application, and further, as the details in regard to the heirs and legal representatives of the said Smt. Kishori Devi (plaintiffappellant) have not been brought to the notice of the Court, the Court has no Option, but to hold the service of notice issued pursuant to the said order dated 2582005 as sufficient.

The service of notice issued pursuant to the said order dated 2582005 is accordingly held to be sufficient.

As noted above, as per the averments made in paragraph No. 3 of the affidavit accompanying the aforementioned Abatement Application, as also in view of the Office Report dated 235 2006, it is evident that no Substitution Application has been filed on behalf of the heirs and legal representatives of the said Smt. Kishori Devi (plaintiffappellant) for being substituted in place of the said Smt. Kishori Devi (plaintiff appellant).

Therefore, the Second Appeal at the instance of the said Smt. Kishori Devi (plaintiffappellant) stands abated.

The said Smt. Kishori Devi was the sole plaintiffappellant. Consequently, the Second Appeal stands dismissed as having abated.