Court No. - 7 Case :- WRIT - C No. - 69933 of 2009 Petitioner :- Desh Raj Respondent :- Ramesh Chandra & Ors. Petitioner Counsel :- Bharat Pratap Singh Hon'ble Ran Vijai Singh,J.
Through this writ petition quashing of the order dated 13.11.2009 passed by
Additional District Judge, Court No.6, Aligarh in Civil Appeal No. 22 of 2005
( Deep Chandra vs Desh Raj and others) has been sought for by which the
application of the respondents (plaintiff’s) for amendment filed under Order 6
Rule 17 C.P.C. has been allowed on payment of Rs.500/- as costs.
It appears that the father of the present respondent has filed suit praying
decree of permanent prohibitory injunction against the defendants their agent,
servants and subordinate employees from raising any construction after
encroaching upon the Rasta and also from closing the phatak at first floor and
window and Par-Nala etc. at first floor shown in read colour annexed with
plaint.
Pending that suit it appears Deep Chandra has died and the present
respondents have filed substitution application that was barred by time
therefore an application was also filed under Section 5-C for condoning the
delay in filing the substitution application. The application was rejected and
consequently the suit abated.
Challenging this order a miscellaneous appeal was filed in the name of Deep
Chandra in which present application for amendment seeking insertion of the
names of present respondents was filed and the same has been allowed by the
impugned order.
Learned counsel for the petitioner submits that miscellaneous appeal was not
maintainable against an order rejecting an application filed under Section 5 of
Limitation Act and the court below has erred in entertaining the appeal and
passing impugned order.
I have heard learned counsel for the petitioner. Misc. appeal lies under Order
43 Rule 1 (K) against an order refusing to set aside the abatement on an
application filed under Order 22 Rule 1 of the C.P.C. Here the application
filed for condoning the delay in filing substitution by the present respondent
was dismissed as barred by time and the suit has abated. The appeal against
such order is very well maintainable. It appears due to fault of counsel the
appeal was filed against that order in the name of dead person (late Deep
Chandra), whereas he had already expired pending suit and application of the
present applicant for substitution was rejected.
Sitting under Article 226 of the Constitution of India while exercising the
discretionary jurisdiction, I am not inclined to interfere with the impugned
order as no prejudice is caused to the petitioner and inconvenience caused to
him has been compensated by imposing cost while allowing the amendment
application.
The writ petition lacks merit and it is hereby dismissed.
Order Date :- 3.2.2010
PKB