Court No. - 28 Case :- WRIT - C No. - 53776 of 2008 Petitioner :- Sant Pratap Singh Respondent :- Ashwani Kumar Yadav And Others Petitioner Counsel :- A.P. Tewari,S.S. Tripathi Respondent Counsel :- Sc,H.N.Singh,P.S.Sharma Hon'ble Sanjay Misra,J.
Heard Sri P.S. Sharma holding brief of Sri A.P. Tewari, learned
counsel for the plaintiff-petitioner as also Sri H.N. Singh, learned
counsel who has appeared on behalf of Respondents No.1 to 6.
Counter and rejoinder affidavits are available on record.
The petitioner who is plaintiff of Suit No.843 of 1985 is aggrieved
by the order dated 04.10.2008 passed by the Revisional Court
(Annexure No.13 to the writ petition) whereby the order dated
11.07.2008 passed by the Trial Court in substitution of
Respondents No.2, 3 & 5 has been set aside and the matter has
been remanded back to the Trial Court to reconsider the
substitution matter in light of the fact that the substitution
application was made in the year 2007 by the plaintiffs whereas
the defendant had already moved an Application No.155-C for
abatement of the proceedings on 24.07.2003. The Revisional Court
was of the opinion that when an abatement application was filed in
the year 2003 by the defendants the Trial Court ought to have
considered such application for abatement while considering the
substitution application relating to the deceased-defendant nos.2, 3
& 5 made by the plaintiff in the year 2007.
From a perusal of the impugned order and the reason given therein
it is quite clear that the information as required under Order 22
Rule 10A CPC was given by the defendants to the Court and the
substitution application was moved by the plaintiff after nearly
three and half years.
In view of the aforesaid circumstances, since the Trial Court has
failed to consider the abatement application while deciding the
substitution application of the deceased-defendants the Revisional
Court has rightly remitted the matter to the Trial Court to decide
all the three applications together.
For the aforesaid reason, there is no error in the impugned order.
The remand is in accordance with law. The writ petition has no
merit and it is, accordingly, dismissed.
No order is passed as to costs.
Order Date :- 10.8.2010
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