N.D.Ojha, J. - (1.) Respondent No. 2 Tara Chand Rohiley is the landlord of house No. 11/277 Souterganj, Kanpur. Each of the petitioners 1 to 4 was tenant of an independent portion of the said house on behalf of respondent No. 2 when an application was made in the year 1969 by respondent No. 2 under section 3 of the U. P. Temporary Control of Rent and Eviction Act, 1947 (hereafter referred to as the U. P. Act No. 3 of 1947) for permission to file a suit for ejectment against the petitioners on the ground that he bona fide needed the accommodation occupied by the petitioners for his own use. This application was contested by the petitioners and was dismissed by the Rent Control and Eviction Officer. A revision filed by respondent No. 2 also failed but on a representation made by him under section 7-F of U. P. Act 3 of 1947 his application under section 3 aforesaid was allowed. The state Government took into consideration the circumstances that respondent No. 2 was himself occupy log an accommodation as a tenant and a notice had been served on him by the landlord thereof requiring him to vacate that accommodation. In view of this fact that State Government took the view that since respondent No. 2 was likely to be evicted from the house occupied by him as a tenant his need for his own house was bona fide. The order of the State Government was challenged by the petitioners in this court in writ petition No. 3752 of 1973. The writ petition was allowed on the ground that the State Government has not given reasonable opportunity to the petitioners to meet this case of respondent No. 2 that there was apprehension of his being evicted from the house which he was occupying as a tenant. The State Government was enquired to decide the case afresh after giving a reasonable opportunity to the petitioners to contest the case set up by respondent No. 2. In pursuance of the order passed by this court the state Government decided the matter afresh and again allowed the application of respondent No. 2 for permission to file suit for ejectment against the petitioners. The state Government reiterated its earlier view that respondent No. 2 was facing the risk of being evicted from the house occupied by him as a tenant and consequently his need was bona fide. At this place it may be pointed out that landlord of the house which is being occupied by respondent No. 2 as a tenant had made an application for release of the said accommodation under section 21 of the U. P. Urban Building Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as U. P. Act 13 of 1972) on the ground that he needed the said accommodation for his own use. A certified copy of the order passed by the 2nd Additional district Judge, Kanpur, on 16th February, 1982, in Rent Appeal No. 174 of 1979 (Kaushal Kishore Gupta and others v. Tara Chand) has been produced before me by counsel for respondent No. 2 which indicates that the release application made by the landlord of the house occupied by respondent No. 2 as tenant has been allowed and respondent No. 2 has been directed to vacate that accommodation within a period of six months from the date of that order. this period of six months is about to expire on 16th August, 1982. The petitioners have filed the present writ petition against the impugned order of state Government dated 13th July 1979, allowing the application of respondent No. 2 again, as referred to above.
(2.) Before dealing with the submissions made by counsel for the parties on merits of the writ petition it may be pointed out that Smt. E R. Parker, petitioner No. 2 died on 18th July 1981. An application was made by her four sons on 9th July 1982, for being substituted as her legal representatives. Counter and Rejoinder affidavits have been filed. This application having been made after about a year of the death of Smt E.R. Parker is obviously highly belated. In view of Rule 38-A of Chapter VIII of the rules of the court the provisions contained inter alia in rules 3, 4 and 9 of Order 22 of the Code of Civil Procedure apply to a writ petition under Article 226 of the Constitution. A division bench of this court while interpreting rule 38-A aforesaid has held in Nand Kishore v. Deputy Director 1968, A.L.J.1062 that limitation of 90 days for filing an application to substitute the legal representatives of a deceased party applies to a writ petition also. In H.P. Khan v. Pooran 1966, A.L.J. 281, a Full bench of this Court has held that abatement in such a situation comes into effect automatically on the expiry of the period prescribed and no specific order by any court is enquired in this behalf. As such it is apparent that this writ petition stands abated in so far as Smt. E.R. Parker is concerned.
(3.) The question is whether the delay in making the application for substitution aforesaid has been sufficiently explained as contemplated by section 5 of the Limitation Act. Indeed no separate application under section 5 of the Limitation Act for condonation of the delay and setting aside abatement has been made. However, a prayer for condonation of the delay has been made in the application for substitution itself which purports to be under Order 12 Rule 3 read with section 151 Civil Procedure Code and section 5 of the Limitation Act.;