N. D. Ojha, J. - (1.) RESPONDENT no. 2 Radhey Shyam Gupta is the landlord of an accommodation of which one Bal Mukund who was the predecessaor in interest of petitioners 1 to 4, was the tenant. An application was made by respondent no. 2 for release of the said accommodation under section 21 of the U. P. Urban Bulidings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as U. P. Act XIII of 1972) on the ground that he needed it bonafide for his own use. This application was contested by Bal Mukund but was allowed by the Prescribed Authority. On an appeal filed by Bal Mukund however, the order of the Prescribed Authority was set aside and the application for release was dismissed. RESPONDENT no. 2 challenged the aforesaid order before this Court in writ petition no. 1285 of 1977. During the pendency of the aforesaid writ petition Bal Mukund died some times in April, 1978. An application was made by respondent no. 2 who was the petitioner in that writ petition to substitute the petitioners of the present writ petition as legal representatives of the deceased Bal Mukund. This application was allowed. Subsequently the writ petition itself was allowed on 3rd August 1979. The appellate order dismissing the release application was quashed and the appellate court was directed to dispose of the release application afresh in accordance with law in the light of the observations made in the judgment allowing the writ petition. On 17th March, 1980 an application was made by present petitioner before respondent no. 1 for substituting their names in place of the deceased Bal Mukund. Another application deems to have been subsequently made by respondent no. 2 for abating the appeal on the ground that no application had been made by the petitioners to get themselves substituted in place of Bal Mukund within one month of the death of Bal Mukund in April, 1978 as contemplated by Rule 25 of the Rules framed under the aforesaid Act. By an order dated 27th March, 1980 respondent no. 1 dismissed the application made by the petitioners for substitution in default and directed the appeal to have abated. An application was made by the petitioners for setting aside that order which was, however, dismissed on 4th August, 1981. A certified copy of the order dated 4th August, 1981 has been filed today. It indicates that the said application was dismissed holding that the appeal having been ordered to have abated an application for review was not maintainable.
(2.) IT has been urged by counsel for the petitioner that since the petitioners had already been substituted as legal representatives of Bal Mukund in writ petition no. 1285 of 1977 and since respondent no. 1 was directed by this Court to decide the appeal afresh it was indeed not necessary at all to make by any fresh application for substitution before respondent no. 1 and the view taken by the said respondent in the impugned order suffers from a manifest error of law. For the respondent no. 2 on the other hand it has been urged by his counsel relying on the decision of a Full Bench of this Court in Udai Bhan Singh v. Board of Revenue, AIR 1974 All. 202 that a writ petition is not a continuation of the proceeding in which the order which has been impugned in the writ petition was passed and consequently the order passed in the writ petition substituing the legal representatives of the deceased Bal Mukund could not ensure to the benefit of the petitioners in the appeal which had been filed by the deceased Bal Mukund against the order of the Prescribed Authority. Having heard counsel for the parties I am of opinion that the impugned order abating the appeal cannot be sustained. A perusal of the impugned order indicates that respondent no. 1 has taken the view that since Bal Mukund died in April, 1978 and since no application to substitute his legal representatives was filed within one month of the death of Bal Mukund as contemplated by Rule 25 of the Rules framed under U. P. Act XIII of 1972 the appeal abated. In my opinion respondent no. 1 has committed a manifest error of law in taking view. Sub-section (4) of Section 34 of U. P. Act XIII of 1972 which enables the legal representatives of a deceased party to certain proceedings under the Act being substituted in place of the deceased party reads as follows :- "(4) Where any party to any proceeding for the determination of standard rent of or for eviction from a building dies during the pendency of the proceeding such proceeding may be continued after bringing on the record; (a) in the case of the landlord or tenant, his heirs or legal representatives; (b) in the case of an unauthorised occupant any person claiming under him or found in occupation of the building." Sub rule (1) of Rule 25 framed under the U. P. Act XIII of 1972, on the other hand, provides: "(1) Every application for substituting the names of the heirs of the legal representatives, the claimants or occupants of any person who was a party to any proceedings under the Act and died during the pendency of the proceedings, shall be preferred with in one month from the date of the death of such person." A perusal of sub-section (4) of section 34 as well as sub-rule (1) of Rule 25, referred to above indicates that these two provisions contemplate substitution of legal representatives and making an application for that purpose within one month only the death of a party to the proceedings under the Act referred to therein has taken place during the pendency of the proceedings. In the instant case when Bal Mukund died in April, 1978 admittedly no proceedings were pending before respondent no. 1. The appeal which had been filed by Bal Mukund had already been allowed by respondent no. 1 and on the appeal being allowed the proceedings before respondent no. 1 came to an end. In view of the decision of the Full Bench of this Court in Udai Bhan Singh's case (Supra) cited by counsel for respondent no. 2 himself writ petition no. 1285 of 1977 filed by respondent no. 2 challenging the order of respondent no. 1 allowing the appeal of the deceased Bal Mukund could not be treated as a continuation of the proceedings under section 21 of U. P. Act XIII of 1972. As such, even on account of the pendency of the Writ petition it could not be said that proceedings under the Act were pending before respondent no. 1 in April, 1978 when Bal Mukund died. On the facts of the instant case it is, therefore, clear that neither sub-section (4) of section 34 of U. P. Act XIII of 1972 nor Rule 25 framed thereunder was applicable. Consequently the appeal could not have been abated on the ground that no application was made for substituting the legal representatives of Bal Mukund within one month of his death as contemplated by Rule 25 of the Act. It is true that writ petition no. 1285 of 1977 could not be treated as continuation of the proceedings under Sec. 21 of U. P. Act XIII of 1972. However, the requirement of getting the legal representatives of a party to a writ petition substituted on the death of such party apply to writ petitions also and as already noticed earlier the present petitioners were got substituted as legal representatives of the deceased Bal Mukund in writ petition no. 1285 of 1977. It is only thereafter that the writ petition was allowed and respondent no. 1 was directed to decide the appeal afresh in accordance with law. It is by virtue of this order that the appeal before respondent no. 1 got revived. In Brij Inder Singh v. Kanshi Ram, 1917 ALJ 777 (PC) it was held by the Privy Council that if legal representatives of a deceased party were substituted at one stage of a suit, even in the course of an interlocutory application it was sufficient for all stages of the suit. However, since a writ petition cannot be treated as a stage of a suit technically speaking on the petitioners being substituted in place of the deceased Bal Mukund in the writ petition it could not be said that they would be deemed to have been substituted in the appeal. But there is a vital circumstance which cannot be lost sight of. And it is this. The direction to decide the appeal afresh having been issued by this Court in writ petition no. 1285 of 1977 after the petitioners had been substituted in place of Bal Mukund in the said Writ petition had to be complied with by respondent no. I both in letter and spirit. Apparently respondent no. 1 had not been directed to decide the appeal filed by a dead person. The direction was, on the face of it, to decide the appeal between the present petitioners who represented the interest of the deceased Bal Mukund as tenants on the one hand and respondent no. 2 who was the landlord of the accommodation in question on the other. In the circumstances pointed out above only a formal application was necessary to be made in order to keep the record straight with a prayer to delete the name of deceased Bal Mukund as appellant and bring on record the present petitioners in his place who at the instance of respondent no. 2 himself had already been substituted in the writ petition. For making such an application no limitation has been prescribed. An application by the present petitioner was, as Indicated earlier, filed before respondent no. 1 on 17th March, 1980. In view of that application the name of deceased Bal Mukund should have been struck off and the names of the present petitioners should have been brought on record as appellants In the appeal which became pending before respondent no. 1 in view of the direction issued by this Court by the order passed in writ petition no. 1285 of 1977. It is true that on the date when that application came up for orders no one was present on behalf of the petitioners and the application was dismissed, in default. However, an application was made by the petitioner for recalling that order but the said application was dismissed as not maintainable. Since the appeal could not have abated as already held earlier and since the application made by the petitioners before respondent no. 1 on 17th March, 1980 referred to above, had been dismissed in default, the subsequent application for recalling the order was certainly maintainable at any rate In so far as the dismissal of the application dated 17th March, 1980 Is concerned, in as much as that order was passed in default of the petitioners and an application for recalling an order which had been passed in default of a party was maintainable in view of Sec. 34 (1) (g) of U. P. Act XIII of 1972 read with Rule 22 (a) of the Rules framed under the said Act. As seen above on the facts of the instant case only a formal application was to be made in order to keep the record straight to delete the name of deceased Bal Mukund and substituted the names of the petitioners in his place. The release application has been pending since the year 1975 and was, by order dated 3rd August, 1979, passed in writ petition no. 1285 of 1977, to be disposed of "as far as possible within two months". The order directing the appeal to have abated has already been held to be manifestly erroneous in law. In these circumstances of the case I am of opinion that it is a fit case where in place of quashing the order dated 4th August, 1981 only whereby the application made by the petitioners for recalling the order of abatement of the appeal was dismissed as not maintainable and requiring respondent no. 1 to decide that application afresh. Both the orders dated 4th August, 1981 and 27th March, 1980 may be quashed and the respondent no. 1 may be directed to decide the appeal afresh expeditiously after bringing on record petitioners as appellants in place of the deceased Bal Mukund.
(3.) IN the result, the writ petition succeeds and is allowed and the order dated 27th March, 1980 as well as the order dated 4th August, 1981 passed by the respondent no. 1 is quashed. The respondent no. 1 is directed to bring on record the present petitioners as appellants in place of the deceased Bal Mukund and decide the appeal in accordance with the directions contained in the order dated 3rd August, 1979, passed by this Court in writ petition no. 1285 of 1977 as far as possible within two months from the date on which this order is communicated to him or its certified copy is filed before him by either party, whichever is earlier. IN the circumstances of the case, however, the parties shall bear their own costs. Petition allowed.;