Salik Ram Gupta, S/O-Late Sri Gaya … vs Additional District Judge, Court … on 12 July, 2010

Allahabad High Court
Salik Ram Gupta, S/O-Late Sri Gaya … vs Additional District Judge, Court … on 12 July, 2010
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                                                      Court No.24

              Writ Petition No. 6922 (MS) of 2009
Salik Ram Gupta        Vs    Additional District Judge and others

                               AND

              Writ Petition No. 6923 (MS) of 2009
Salik Ram Gupta        Vs    Additional District Judge and others

                             -----------
Hon'ble Rajiv Sharma, J.

As both the writ petitions arise out of the order dated
7.11.2009 passed in Civil Revision No. 136 of 2007, they are
being taken up together for common orders.

Heard learned Counsel for the parties.

Brief facts of the petitioner’s case are that the opposite
parties filed a Civil Suit No. 78 of 1994 for cancellation of sale
deed 13.8.1975 as well as permanent injunction against the
petitioner and the same has proceeded ex parte. Subsequently,
the trial Court passed an ex parte order on 13.11.2000. Against
the order dated 13.11.2000, the petitioner moved an application
under Order 9 Rule 13 of the Code of Civil Procedure alongwith an
application under Section 5 of the Limitation Act. Thereafter, on
17.5.2007, the trial Court rejected both the applications.

Feeling aggrieved, the petitioner filed a Civil Revision No.
136 of 2007. During the pendency of Revision, the Jhinnu died.
Thereafter, an application for substitution alongwith an application
for condonation of delay was filed which was allowed ex parte vide
order dated 25.1.2008. Subsequently, after lapse of five months,
legal heirs of Jhinnu filed an application for recall of the order
dated 25.1.2008 wherein it has been mentioned that the date of
death of Jhinnu was 5.6.2007, whereas the petitioner has
mentioned as 3.6.2007.

When the petitioner came to know this fact, he moved an
amendment application for correction of the date of death of
Jhinnu. Against the substitution application, the proposed legal
heirs of Jhinnu filed objections. After hearing the parties, the
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impugned order has been passed on 7.11.2009 by which the
application for condonation of delay was rejected.

In the application for condonation of delay, it has been
specifically mentioned that when the petitioner came to know the
death of Jhinnu, he immediately moved an application on
19.11.2007, though belated. Initially, the said application was
allowed, but subsequently on the objections filed by the legal
heirs of Jhinnu, the said order was recalled, result into passing of
the impugned order. As the petitioner has shown sufficient
ground, it needs to be quashed.

Accordingly, both the writ petitions are allowed and the
impugned order dated 7.11.2009 is hereby quashed. The
application for condonation of delay is condoned on payment of
Rs.5,000/- costs. The Revisional Court is directed to decide the
substitution application on merits, in accordance with law, within a
period of two months, from the date of production of a certified
copy of this order, as the matter is quite old and pertains to the
year 1994.

Dt.12.7.2010
Lakshman/

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