Maheshwar Dutt vs Addl. Chief Revenue Commissioner and Others

Alok Singh, J.

CLMA No. 10909 of 2013 and CLMA No. 10910 of 2013

Plaintiff/respondent No. 3, herein, has filed suit for partition under Section 176/229-B of the U.P.Z.A. and L.R. Act, which was dismissed by the Trial Court. First Appeal arising therefrom was allowed by the Addl. Commissioner (Administration), Kumaon, vide order dated 16.07.1991 remanding the matter to the Trial Court to pass preliminary decree in the light of observations made in the body of the judgment. Judgment passed by the First Appellate Court dated 16.07.1991 was assailed in Second Appeal No. 2 of 1991-92 by the plaintiff/respondent No. 3, herein. Vide order dated 27.05.2003, Second Appeal so filed by the plaintiff respondent No. 3, herein, was allowed setting aside the judgment and order dated 16.07.1991, passed by the First Appellate Court and suit of the plaintiff was decreed. Feeling aggrieved Shri Maheshwar Dutt has preferred Writ Petition No. 771 of 2003 (M/S) before this Court.

When writ petition was taken up for hearing on 1st July, 2011, none could appear for the petitioner, however, Mr. J.C. Belwal, learned counsel, appearing for the plaintiff/respondent No. 3, made statement that sole petitioner had died. Having recorded the statement made by Mr. J.C. Belwal, learned counsel for respondent No. 3 and having recorded absence of the petitioner, writ petition was dismissed for non prosecution vide order dated 01.07.2011.

Restoration Application No. 632 of 2013 has been moved by Khimanand @ Kailash Chandra, applicant No. 1, Naveen Budlakoti, applicant No. 4, being natural sons of original petitioner Shri Maheshwar Dutt and by Smt. Rekha Budlakoti and Master Vishwas (minor) through his natural mother/guardian Smt. Rekha Budlakoti, applicant Nos. 2 and 3, being widow and minor son of pre-deceased son of original petitioner Shri Maheshwar Dutt, namely, Shri Raj Kumar Budlakoti. All the four applicants have also moved Substitution application No. 10910 of 2013 seeking their substitution in place of deceased sole petitioner Shri Maheshwar Dutt alongwith Delay Condonation Application No. 10909 of 2013 seeking condonation of delay in moving substitution application. Application No. 10908 of 2013 has also been moved seeking condonation of delay in moving Restoration Application No. 632 of 2013.

Before dealing with the Restoration Application, M.C.C. No. 632 of 2013 and application seeking condonation of delay in moving restoration application, CLMA No. 10908 of 2013, I would like to deal with important question of law as to whether legal heirs of the deceased, sole petitioner, can maintain restoration application without seeking substitution or they have to seek substitution first?

Undisputedly, Writ Petition No. 771 of 2003 (M/S), was dismissed for non prosecution vide order dated 1st July, 2011. Since, writ petition is no more pending as on day, therefore, legal heirs of sole petitioner who had expired prior to the dismissal of writ petition for non prosecution, cannot seek substitution in a dismissed petition.

In my humble opinion, language of Order 22 Rule 3 and 4 of C.P.C. would suggest that provisions of Order 22 of C.P.C. can be pressed in service for substitution of legal heirs of deceased plaintiff, appellant, defendant or respondent in a pending suit or appeal as the case may be. If suit or appeal is dismissed for non prosecution or is decided ex-parte and plaintiff, defendant, appellant or respondent as the case may be has expired prior to or after the dismissal of suit or appeal for non prosecution or prior to or after ex-parte judgment/decree/decision, then in that event, L.Rs. of deceased party may apply for the restoration or setting aside ex-parte decision/judgment/decree. However, L.Rs. have to mention in their application for restoration or setting aside ex-parte decision/judgment/decree that on the death of such party, they are the only legal heirs of the deceased party, thus, are entitled to move application. If, after hearing the OPs, learned Court finds that applicants are the legal heirs of the deceased party, may allow such application for restoration or setting aside ex-parte decision/judgment/decree if sufficient cause is shown to remain absent justifying the restoration or setting aside ex-parte decision/judgment/decree. In that event, there would be no need to apply afresh for substitution of the L.Rs. after restoration or setting aside the ex-parte decision/judgment and such applicants shall be deemed having been substituted. However, necessary consequential amendment in the memo of parties shall be carried out, within such time as Courts direct after restoration of suit or appeal as the case may be.

Since, broad principles of C.P.C. are always pressed in service in the writ petition, therefore, same principles shall be followed in the writ petition.

Thus, in my humble opinion, the only course open to the legal heirs of the sole petitioner is to move restoration application saying sole petitioner had expired prior to the dismissal of the writ petition for non prosecution, therefore, being legal heirs of the sole petitioner, they are entitled to move restoration application. In view of the discussion made hereinbefore, there was absolutely no need for the legal heirs of the sole petitioner, Maheshwar Dutt to move substitution application No. 10910 of 2013 and application seeking condonation of delay, i.e. CLMA No. 10909 of 2013 in moving substitution application.

Consequently, both the applications are dismissed being misconceived and non-maintainable.

CLMA No. 10908 of 2013

Undisputedly Writ Petition No. 771 of 2003 (M/S) was dismissed for non prosecution vide order dated 1st July, 2011. Mr. J.C. Belwal, learned counsel, appearing for respondent No. 3, does not dispute that Shri Maheshwar Dutt, sole petitioner, has expired on 24.09.2008 leaving behind three sons, i.e. Khimanand @ Kailash Chandra, Naveen Budlakoti and Raj Kumar Budlakoti. It is also not in dispute that third son of Shri Maheshwar Dutt, namely, Shri Raj Kumar Budlakoti has also expired on 21.08.2012 leaving behind Smt. Rekha Budlakoti, widow and master Vishwas (minor) son.

In view of the above, all the four applicants are undisputedly legal heirs of deceased, sole petitioner, Shri Maheshwar Dutt, therefore, they are entitled to move restoration application as well as Delay Condonation Application No. 10908 of 2013 seeking condonation of delay in moving restoration application.

Now, I have to examine as to whether delay in moving restoration application is liable to be condoned on the ground mentioned in accompanying affidavit of CLMA No. 10908 of 2013.

Undisputedly, suit for partition was decreed by the Second Appellate Court, vide impugned judgment and decree dated 27.05.2003. It is stated in the accompanying affidavit that all the applicants could know about the pendency/dismissal of the writ petition only when they received notices from the Trial Court in a proceeding for preparation of final decree issued on 26.07.2013. Having received such notices from the Trial Court, applicants got inspected Trial Court file through their lawyer and, thereafter, they could know about the filing of writ petition by Shri Maheshwar Dutt, father of applicant Nos. 1 and 2 and dismissal of Writ Petition No. 771 of 2003 (M/S) for non prosecution, vide order dated 1st July, 2011 only on 25.09.2013 and, soon thereafter, restoration application was moved alongwith application seeking condonation of delay in moving the restoration application.

There is nothing on record to point out that either of the applicants was aware about the pendency of the suit for partition or present writ petition arising out from the suit of partition. This is not in dispute that Trial Court has issued notice on 26.07.2013 in a proceeding for preparation of final decree and, thereafter, applicants could gather knowledge about the filing and dismissal of the Writ Petition No. 771 of 2003 (M/S) for non prosecution, vide order dated 1st July, 2011.

While considering the question of condonation of delay, Court must keep in mind that none of the parties should be given walk over on hyper-technical grounds and, ordinarily, liberal approach should be adopted by the Court while condoning the delay and condonation of delay should be declined only when party seeking condonation of delay is found to be negligent.

In view of the facts and circumstances narrated hereinbefore, in my humble opinion, delay in moving restoration application is liable to be condoned. Therefore, Application No. 10908 of 2013 is allowed. Delay in moving restoration application is condoned.

Restoration Application No. 632 of 2013

Since, delay in moving restoration application has been condoned for the reasons recorded hereinbefore, therefore, for the same reasons, order dated 1st July, 2011, dismissing the writ petition for non prosecution, is liable to be recalled and writ petition is liable to be restored to its original number.

Restoration Application being MCC No. 632 of 2013 is also allowed.

For the reasons recorded hereinbefore, order dated 1st July, 2011 is recalled. Writ petition No. 771 of 2003 (M/S) is restored to its original number, however, subject to the payment of cost of Rs. 10,000/-. Out of Rs. 10,000/-, Rs. 5,000/- shall be paid to respondent No. 3 and balance Rs. 5,000/- shall be paid in favour of Uttarakhand High Court Bar Association Advocates Welfare Fund within a week.

List this writ petition after payment of cost. Applicants shall place on record of the writ petition amended memo of parties within fifteen days from today.