U. K. Dhaon, J. - (1.) HEARD Sri Ram Karan Agrawal, learned counsel for the petitioner and Sri J. P. Mathur, who has put in appearance on behalf of the opposite party.
(2.) THE petitioner has approached this Court against the order dated 5.2.2003, by which the Additional District Judge, Lucknow, has allowed the miscellaneous appeal preferred by the opposite party and remanded the matter to the trial court. The brief facts of the case are that a suit for specific performance of contract was filed by the opposite party against one Sri Dayanand Bhardwaj, who was a resident of Delhi. During the pendency of the suit, Sri Dayanand Bhardwaj expired and on behalf of the deceased-defendant information was given on 15.5.2000 to the trial court about the death of the defendant but in the said application, the date of death was not mentioned by the counsel who moved the application. Later on, the opposite party (plaintiff) moved an application for substitution on 20.2.2001 under Order XXII, Rule 4 read with Order VI, Rule 17 and Section 151, C.P.C. The said application was rejected by the trial court and the suit was also dismissed being abated. Being aggrieved by the order dated 17.4.2002, passed by the trial court, the opposite party filed the miscellaneous appeal under Section 104 read with Order XLIII, Rule 1 (k), C.P.C. The lower appellate court by the impugned order dated 5.2.2003, has allowed the appeal and remanded the matter to the trial court. Being aggrieved by the order dated 5.2.2003, the petitioner has approached this Court. The learned counsel for the petitioner submits that the miscellaneous appeal preferred by the opposite party under Order XLIII, Rule 1 (k) was legally not maintainable. He further submits that no application before the trial court for setting aside abatement was moved and the application for substitution was also moved after nine months from the date of information to the plaintiff. The learned counsel for the petitioner further submits that the plaintiff was having full knowledge in December, 1999, about the death of the defendant but deliberately he has not moved the application for substitution and the trial court has rightly rejected the application moved by the opposite party for substitution. Sri J. P. Mathur, learned counsel for the opposite party submits as the substitution application was rejected and the suit was dismissed being abated. The miscellaneous appeal was maintainable under Order XLIII, Rule 1 (k) C.P.C. read with Section 104. He further submits that there is no illegality in the impugned order passed by the lower appellate court and the counsel for the defendant himself apprised the court about the death of the defendant after more than two years.
(3.) I have considered the arguments of the learned counsel for the parties and gone through the record. The opposite party filed a suit for specific performance of contract in the Court of Civil Judge (Senior Division), Malihabad, Lucknow, and in the said suit Sri Dayanand Bhardwaj was impleaded as defendant. It is the admitted case of the parties that the defendant has expired on 27.1.1998 and for the first time, the learned counsel appearing on behalf of the defendant informed to the Court on 15.5.2000 about the death. It is also admitted case of the parties that in the information submitted by the counsel to the Court, no date of death was mentioned in the application. The substitution application under Order XXII, Rule 4 read with Section 151, C.P.C. moved on 20.2.2001, was admittedly beyond time. The deceased was a resident of Delhi and the information of death was given by the learned counsel for defendant only on 15.5.2000 but the date of death was not disclosed. The lower appellate court has rightly allowed the miscellaneous appeal preferred by the opposite party as miscellaneous appeal lies against the refusal to set aside the abatement and dismissal of the suit being abated under the provision of Order XLIII, Rule 1 (k) of the Civil Procedure Code. While allowing the appeal, the Court has also exercised his discretion and it is the settled law of this Court as well as Hon'ble the Supreme Court that the discretion of the Court should be exercised to do justice. There is no illegality in the impugned order passed by the lower appellate court. The writ petition is devoid of merits. It is accordingly dismissed at the admission stage.;