Laxmi Devi and Ors. vs Sita Mehrotra & Ors.

S.U. Khan, J.—Learned Counsel for landlordrespondents who has appeared through Caveat states that he does not want to file any counter affidavit and the writ petition may be disposed of right now.

Release application under Section 21 of U.P. Act No. 13 of 1972 filed by landlordrespondent against tenantpetitioners in the form of P.A. Case No. 6 of 1989 was allowed by P.A./Civil Judge (J.D.), Kannauj District Farrukhabad through judgment and order dated 1081998. Tenant filed appeal against the judgment and order being R.C. Appeal No. 1 of 1998. During pendency of appeal tenant died. Petitioners who are his legal representatives filed application for substitution. As the application was filed after 30 days hence it was accompanied by an application for condonation of delay. In the said application due to inadvertence 2342000 was fixed for disposal, which was Sunday. The case was taken up on the next day namely 2442000. In the absence of petitioners said application was rejected and appeal was dismissed as abated. Thereafter,application to recall the said order was filed which was disposed of on 282000. Lower Appellate Court rejected the application seeking to recall abatement of the appeal dated 2442000 and to hear substitution and delay condonation applications. However, the order dated 2442000 dismissing the appeal was recalled by the said order on the ground that petitioners had no knowledge of the date 244 2000. Thereafter, some more applications were filed and ultimately by order dated 3152004 appeal was dismissed as abated. Earlier an application was filed numbered as 138 Ka, which was rejected on 2932004. By the order dated 642004 it was held that appeal had abated and appeal was also dismissed in default. Thereafter, an application to recall the said order was filed which was dismissed on 3152004. The second writ petition is directed against order dated 3152004 and the first writ petition is directed against orders dated 2932004 and 642004.

The entire exercise taken by lower Appellate Court was based on the presumption that appeal under Section 22 of the Act like a suit or appeal under C.P.C., stands automatically abated after expiry of period of limitation for filing substitution application if within such time substitution application is not filed. The view of the lower Appellate Court is clearly not in accordance with law. It is only in the suits and appeals governed by C.P.C., that automatic abatement takes place and prayer for setting aside abatement is essential as held in AIR 1026 Allahabad 217 (F.B.) and AIR 1966 Allahabad 353 (F.B.) cited by learned Counsel for the respondents. However, the said provision does not apply to proceedings not covered by CPC. In Pooran Singh v. State of Punjab, AIR 1996 SC 1092, it has been held that as CPC does not apply to the proceedings of writ petitions hence a writ petition does not abate automatically if substitution application is not filed within reasonable time. Similar is the position in proceedings under Sections 21 and 22 of U.P. Act No. 13 of 1972 as C.P.C., does not apply to these proceedings also (vide 1980 A.W.C. 558 (D.B.), 1981 ARC 247 (D.B.) and 1995 (2) A.R.C. 440).

There was only slight delay in filing substitution application. No useful purpose will be served by sending the matter back for decision on condonation of delay application. Appellant died on 13111999 and substitution application was filed on 1112000. There was hardly a delay of 30 days.

Accordingly writ petitions are allowed. Impugned orders passed by lower Appellate Court are set aside and substitution application filed by tenant/petitioner before the law appellate Court is allowed.

Lower Appellate Court is directed to positively decide the appeal within three months from the date of production of certified copy of this order. Absolutely no unnecessary adjournment must be granted to any of the parties. If any adjournment is granted it must be for a short period and on heavy cost which must not be less than Rs. 500 per adjournment.