N.S.RAVI, J. - (1.) THIS revision has been directed against an order passed by Additional S.D.O. Lalitpur on 30-5-2000 by which substitution application for the legal heirs of defendant No. 3 Ram Narain son of Radha Charan was dismissed and case was abated against him on the ground that the substitution application was moved after more than two years and no sufficient reason or ground was disclosed for filing substitution application so late.
(2.) I have heard learned Counsels of both the parties and have perused the records. It is evident from the record that a suit under Section 229-B of the U.P.Z.A. and L.R. Act was filed before Additional S.D.O. Lalitpur bearing No. 111/97-98. There were number of defendants, same of whom died during the pendency of the case. Legal heirs of some deceased were substituted well in time whereas in case of deceased Ram Narain, substitution application for his legal heirs was moved after about nineteen (19) months. The application was supported by affidavit and application under Section 5 of the Inidan Limitation Act for condonation of delay on 8-4-99 and 29-4-99 The sole ground for late filing of substitution application was lack of knowledge of the date of death of the deceased and lack of knowledge of the legal heirs of the deceased despite best efforts. The defendants objected to the grounds saying that the plaintiff and defendant No. 3 were resident of the same village. So there was no possibility of not knowing about the death of defendant No. 3 and moreover, the plaintiffs did no effort to find out the legal heirs of the deceased. The learned A.S.D.O. dismissed the substitution application and abated the suit against the deceased defendant No. 3 alone, on the ground that the applicant should have known about the death of the deceased being the resident of the same village and if they could not hear of his death atleast their Advocate should have known about this fact as the deceased was father of Mr. Om Prakash Srivastava Advocate and a condolence meeting was organised in the bar of the Court of A.S.D.O. so constructive knowledge of the factum of the death of the deceased will be presumed to the plaintiff. The present revision has been filed against this order.
(3.) IN the file of the lower Court there is an application dated 11-2-99 of respondent No. 5 Smt. Uma Srivastava wife of Sri Om Prakash Srivastava, son of deceased defendant No. 3 wherein it has been stated that defendant Ram Narain has died on 18-9-1997 and because his legal heirs have not been substituted within time so the suit against deceased be abated. After this date on 8-4-99 an application under Order XXII, Rule 9 and Section 151 C.P.C. was moved supported by affidavits, by the plaintiff revisionist for substitution of legal heirs of the deceased. The main argument of the learned Counsel for the respondents before this Court has been that the delay in filing the substitution application is explained and that the revisionist did no effort to find out the legal heirs of the deceased. Though the order passed by the learned A.S.D.O. is detailed one but the presumption that if the revisionists themselves could not get knowledge of the death of the defendant atleast their Advocate should have known this fact being advocate of the same Court wherein the son of the deceased was an advocate and a condolence was organised on his death, should not have been made the basis for the order that no counter-affidavits have been filed to controvert the affidavits of the revisionists-plaintiffs. It is also objectionable that the plaintiffs-revisionists did not try to find out the legal heirs of the deceased. They should have obtained the copies of the Pariwar Register or voter list to ascertain the legal heirs. Despite all these circumstances and facts I feel it necessary in the interest of justice that the application for substitution of the legal heirs of the deceased should be allowed but with a condition that within two weeks from the date of order the revisionists-plaintiffs will substitute legal heirs of the deceased. Thereafter the learned trial Court will proceed to hear the case as par law. If the revisionists-plaintiffs failed to do so within the stipulated time, the learned trial Court will proceed accordingly.;