Sidh Narain and Others vs State of U.P. and Others

M.P. Mehrotra, J.—This petition arises out of the proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, 1960. The brief facts are these.

One Brij Lal was issued the notice u/s 10(2) of the said Act and filed his objections. The objections were rejected by the Prescribed Authority and thereafter Brij Lal filed an appeal in the lower appellate Court. During the pendency of the appeal he died. Thereafter the Petitioners claiming to be the legal representatives of the deceased Brij Lal, moved an application for the substitution of their names in the place of the deceased Appellant. A true copy of the substitution application is Annexure ''2'' to the petition. It seems that when the said application came up for disposal before the lower appellate court, the latter expressed an opinion that the substitution application was defective, inasmuch as it was not verified. Thereafter the Petitioners moved an application praying that permission may be granted to them to verify the substitution application. It was specifically said in the application that the said prayer was being made because the court was of the view that the substitution application should have been verified. The lower appellate court, however, by its impugned order dated 29th November, 1977, a true copy whereof is Annexure ''4'' to the writ petition, rejected the said application and held the appeal to have abated. Now the Petitioners have come up in this petition to this Court and the learned Counsel for the Petitioner, Dr. R. Dwivedi has contended that the impugned order is absolutely without jurisdiction and illegal. In my opinion the said contention is right. No. provision has been shown to me on behalf of the opposite parties which require the substitution application seeking to bring on record the Petitioners as the Appellants in the place of the deceased Appellant to have been verified. The law contained in the CPC does not require a memorandum of appeal to be verified and I fail to see why when that is the position in law, a substitution application seeking to amend such memorandum of appeal needs to be verified. In my opinion the lower appellate court was wrong in holding that there was no proper substitution application and in treating the appeal as abated.

I allow the writ petition and quash the said impugned order dated 29th November, 1977, passed by the lower appellate court and send back the case to the said court with a direction that the substitution application of the Petitioners dated July 21, 1977 shall be considered on merits and thereafter the court shall decide the appeal in accordance with its orders on the substitution application. In these circumstances there will be no order as to costs.