Court No. - 24 Case :- MISC. SINGLE No. - 2320 of 1992 Petitioner :- Moti Lal Respondent :- Civil Judge Petitioner Counsel :- N.N. Jaiswal Respondent Counsel :- R.S. Pandey Hon'ble Rajiv Sharma,J.
Heard Sri N.N. Jaiswal, learned Counsel for the petitioner and Sri R.S.
Pandey, learned Counsel for the opposite parties.
Petitioner’s father, namely, Ram Sagar, has filed a suit for cancellation of sale
and auction, which was numbered as Regular Suit No. 884 of 1987 along with
an application for temporary injunction under Order XXXIX Rules 1 and 2 of
the Code of Civil Procedure. The application for temporary injunction was
rejected by the Munsif, Gonda by the order dated 6.4.1988. Feeling
aggrieved, the petitioner’s father filed appeal, which was numbered as Misc.
Appeal No. 48 of 1988 before the District Judge, Gonda. During the
pendency of the appeal, petitioner’s father-Ram Sagar died in the month of
May, 1988 and as such, the petitioners have moved an application for
substitution on 16.12.1988 along with an application for condonation of delay
under Section 5 of the Limitation Act. The appellate Court rejected the
application for condonation of delay by the order dated 14.8.1992 on the
ground that there appeared contradiction in mentioning time of death of Ram
Sagar deceased in the substitution application as well as in the application for
condonation of delay. Feeling aggrieved, the petitioner has filed the instant
writ petition inter alia on the grounds that due to Counsel’s bona fide mistake
in writing the word “September” as the date of death of Ram Sagar in the
substitution application, while the delay condonation application mentioned
the words “May 88” as period of death.
This Court, while entertaining the instant writ petition, vide order dated
18.9.1992, as an interim measure, provided that petitioners shall not be
dispossessed from the land in dispute unless they have not already been
dispossessed.
Sri R.S. Pandey, learned Counsel for the opposite parties, submits that by
efflux of time, the entire proceedings might have been concluded and in case
the same has not been concluded, the opposite party No.1 may be directed to
conclude the same, expeditiously, to which Sri N.N. Jaiswal, learned Counsel
for the petitioner has no objection.
Considering the facts and circumstances of the case, the writ petition is
allowed. The order dated 14.8.1992 passed by the opposite party No.1 as
contained in Annexure No. 4 to the writ petition is hereby set-aside. Delay in
filing the substitution application in appeal is hereby condoned and
substitution application is allowed. Petitioners will carry out necessary
substitution in the memo of the appeal within fifteen days from today. The
opposite party No.1 is directed to decide Misc. Appeal No.48 of 1988 on
merits, after affording opportunity of hearing to the parties, expeditiously,
say, by 31.1.2011.
Order Date :- 30.7.2010
Ajit/-