- (1.) A. B. Srivastava, J. By means of this writ petition the petitioners-tenants have sought quashing of an order dated 22-1-1986 of the prescribed Authority, Mirazapur allowing release of accommodation in favour of the respondent No. 3-landlord, his order dated 11-3-1991 abating the petitioners' application for recall of the said order of release, and order dated 22-8-1984 of the Additional District Judge, Mirzapur rejecting the petitioners' appeal.
(2.) IT appears a release application was filed by the respondent No. 3 in respect of shop in the tenancy of Raghunath, the father of the petitioner No. 1 and husband of petitioner No. 2, on the ground of personal need. IT appears the tenant did not put in appearance before the prescribed Authority and the latter allowed the release application of the respondent. Subsequently the tenant Raghunath moved an application for setting saide the said order. During the pendency of the same Raghunath died on 27-7- 1990 but on steps were taken by his legal representatives of the petitioners for substitution and by order dated 11-8-1991 the application for setting aside the decree was abated. The peti tioners preferred an appeal which was dismissed on 23-8-1994 as time barred. In this petition counter and rejoinder affidavits have been exchanged. A supplementary affidavit has also been filed. In accordance with Rules of Court the petition is being disposed of finally at admission stage after hearing both sides' learned Counsel. At the very outset it may be mentioned that even the copy of the release order dated 22-1-1986, the quashing of which is sought, has not been filed by petitioners. What they have filed is a copy of order- sheet from 31-7-1985 to 28-1-1986. The order-sheet merely mentions the operative portion of the judgment dated 22-1-1986. The ex parte judgment referred in the said order not being filed, the contention advanced on behalf of the petitioners that the release was allowed without application of mind cannot be accepted.
(3.) THE next contention raised on behalf of the petitioners is that the application under Order IX, Rule 13, CPC, for recall of the release order could not have been abated and that his counsel acted against his interest in conceding before the court below about abatement. THE accusation against the counsel is also correct because what he conceded was that 90 days had passed and no substitution application has been moved. To say that the counsel committed a professional misconduct by not opposing the abatement is also unsustainable. In fact, such opposition would have amounted to not acting in the aid of due process of law. The plea that proceedings under Section 21 of Act 13 of 1972 or restoration application arising therefrom, could not be treated as having abated despite substitution not having been made, and the matter would have had to be kept pending is also not tentable. It is true that Rule 25 of the Rules under Act 13 of 1972 does not make a mention of abatement but even so the proceedings could not be kept pending for all times to come in the expectation of someone appearing and filing a substitution application same day. Such also is not the import of the observations in Subhash Chandra Saxena v. Prescribed Authority (Rent Control) Cum 2nd Additional Civil Judge, Kanpur and others, 1981 AWC 258. In the said case in proceeding under Section 21 of Act 13 of 1972 on the death of the tenant-opposite party, the landlord get impleaded two of his sons. Subsequently, on objection filed by one of the substituted legal representative that two of the legal representatives were deliberately not impleaded, the landlord applied for their impleadment under Order I, Rule 10, CPC, read with Rule 22 (f), which was allowed. On the said order being challenged, this Court held that the one month period provided under Rule 25 for substitution is directory and there is nothing to indicate that the proceedings will abate if no application is made within a month of the death. In view of the same the order allowing impleadment of the two heirs beyond the time prescribed under Rule 25 was held not to be in contravention of law, and the proceedings not to have abated.;