N.L.GANGULY, J. - (1.) AN application under Section 21(1)(a) of U.P. Act No. 13 of 1972 for the release of the house in question situate at mohalla Koft Garan Tola P.S. Attarsuiya, Allahabad City was filed by the deceased Syed. Sarwar Hussain, landlord. The application for the release was allowed by the prescribed authority by order dated 4.1.88. The tenant petitioner filed appeal under section 22 of the Act before the District Judge, Allahabad which was later transferred to the respondent No. 3 IX Addl. District Judge, Allahabad. During the pendency of the appeal, the sole landlord Syed. Sarwar Hussain died. An application for substitution of the legal heirs and representatives of the deceased landlord was filed on 29.5.91 along with an affidavit of the petitioner. There was delay in filing the substitution application and no application for condonation of the delay was submitted. The heirs of the deceased landlord submitted objections before the respondent No. 3 pleading that the application for substitution was barred by limitation. Thus, an application for condoning the delay in filing of the substitution application was filed by the petitioner. The Addl. District Judge rejected the application under section 5 of the LImitation Act by order dated 18.8.93. Simultaneously, the Rent Control Appeal No. 60 of 1988 also stood abated. The present writ petition is directed against the order rejecting the application under Section 5 of the Limitation Act and also the order declaring the appeal as abated, marked as Annexure 3 to the writ petition.
(2.) THE learned counsel for the petitioner submitted that application for substitution shows that expressly it was mentioned that the knowledge of the death of the deceased landlord was on 7.3.91 and actually the death had taken place on 24.2.91. The learned counsel for the petitioner submitted that perusal of the affidavit accompanying the application for substitution does not disclose any reason for delay either when the application under section 5 was moved the same was neither accompanied by any affidavit of the petitioner or any paragraph on behalf of the petitioner nor was the application under section 5 of the Limitation Act itself signed on behalf of the petitioner and contained only signature of the counsel. In the application under section 5 the reasons and prayer for condonation of the delay has been mentioned in the application and affidavit moved on 29.5.93. It was submitted that the reason for delay continued neither any substitution application nor the affidavit accompanying the substitution application nor in the application under Section 5 of the Limitition Act was supported by any affidavit on behalf of the petitioner. The learned counsel for the petitioner submitted that the documents itself it perused would show that there was no fault of the petitioner. The petitioner had instructed his counsel and it appears that due to some oversight and inadvertence the application for substitution which was sight on 7.3.91 could not be moved early than in May 1991. The inadvertance and over-sight appears squarely to be the default on the part of the clerk of the petitioner's counsel. In para 10 of the writ petition, the petitioner has stated that it frequently happens that papers of the case are misplaced in the office of the counsel like on the present case. It was also suggested that the clerk forgets and it is only when other file is opened, the default is noticed and the paper is moved in a judicial forum. There could not be any other reason for not giving any reason whatsoever for delay that was writ large on the face of the application under section 5 as also on the affidavit accompanying the said application. Sri Dhruva Narain submits that one default leads to another and that is why there appears to be absence of affidavit accompanying the application under section 5. It is also strange that the reason of the death of the deceased landlord which is totally irrelevant for the purpose of substitution application "due to illness and old age the sole respondent in the aforesaid case Sri Sarwar Hussain has died on 24.2.91." is mentioned in place of illness and old age. The counsel for petitioner submitted that opposite party No. 3 took a view in rejecting the application under section 5 totally opposed to the view of the Hon'ble Supreme Court which is to the effect that once the party instructs his counsel, the party is not to be blamed for any default that may occur due to any inadvertance or oversight or other circumstances occurring on the part of the counsel and his clerk. Sri Dhruva Narain submitted that what is necessary that substantial justice ought to be done and the parties must be permitted to fight out the issue on merits especially where no party is at blame. The learned counsel stated that the delay ought to have been condoned by the respondent No. 3 and the impugned orders are patently illegal, unwarranted and liable to be quashed.
(3.) SRI Haider Hussain, Advocate filed his caveat. A counter affidavit has also been filed by the respondents. The learned counsel for the parties submitted that the counter affidavit and rejoinder affidavits have been exchanged between the parties. The petition itself is being finally decided without formerly admitting it according to Rules of the court and consent of the parties, I proceed to decide the petition finally.;