- (1.) S. R. Singh, J. Heard the learned Counsel for the parties.
(2.) RAM Pyare, the sole petitioner, died on 20-11-1978, survived by Jagannath, Sri Nath, RAM Shanker, Kripa Shanker, Murlidhar and Bansidhar, the sons and legal representatives. The original application for substitution is not traceable on the record. But from the order-sheet, dated 18-9-1979 and 2-4-1994, it is eloquent that the substitution application was filed, though beyond time, along with an application under Section 5 of the Limitation Act, 1963. During the pendency of the said substitution application, one of the proposed legal representatives namely, RAM Shanker also breathed his last on 10-2-1987. His sons and legal representatives namely, Awadhesh Kumar and Mahesh Kumar are sought to be substituted by means of the application filed on 5-1-1995. So far as the application, dated 27-3-1979 is concerned, it has been moved within five months of the date of the death of Ram Pyare, that is to say, within sixty days of automatic abatement which took place immediately on expiration of ninety days from the date of death. Under Art. 121 of the Third Division of the Schedule to the Limitation Act, the abatement has to be set aside within 60 days. I am, therefore, inclined to condone the delay in filing the said substitution application and set aside the abatement directing that the legal representatives of the deceased Ram Pyare be substituted accordingly. Coming to the application for substitution of Ram Shanker by his legal representatives, it may be recapitulated that it was filed on 5-1-1995 whereas Ram Shanker had died on 10-2-1987. The delay is sought to be explained away as under: " (4) That the deponent is advised to state that the application filed by plaintiff for substitution is not beyond time inasmuch as heirs of the deceased Ram Shanker have come to file the present application on their own initiation. In any view of the matter Ram Shanker, deceased, alone used to do Pairvi on behalf of Ram Pyare sole petitioner. Other sons of Ram Pyare or any of the family members did not do Pairvi in the case. They did not know ways and means of the Court. They did not know that they had to move a substitution application. In any view of the matter estate of the deceased Ram Pyare sole petitioner is represented by other proposed heirs. (5), That deponent along with Awadesh Kumar and Mahesh Kumar came to Allahabad on 3rd January, 1995 to take a holy dip in the confluence of river Ganga. Thereafter, they met their counsel on 4th January, 1995 to know about the fate of their case and during the course of their falks they informed their counsel that Ram Shanker P/3 too has died. Therupon, the counsel advised the applicants- petitioners to move a substitution application at once. Immediately thereafter, they are moving the present application without any delay. " The explanation aforesaid falls short of being satisfactory. The point, however, that looms for being determined is whether the death of one of the proposed legal represen tatives of the sole petitioner during the pendency of the substitution application, could culminate in abatement of the writ petition as a whole because the death of Ram Shanker occurred before he could be arrayed as a party to the writ petition.
(3.) IT was urged by Sri S. D. Pathak that the rest of the legal representatives of pristine petitioner Ram Pyare sufficiently represent the estate of the deceased and therefore, the writ petition cannot be checked out as abated. To lend cogency to his contention, he has placed credence on a decision of the Supreme Court in Daya Shanker v. Sundari, AIR 1965 SC 1049. In that case, the appellant therein had impleaded heirs of the deceased- respondent so far as known to him within the time allowed by law, but omitted to bring on record some of the heirs. The question was whether this omission would rebound in abatement of the appeal. The Supreme Court held that the legal representatives already brought on record would sufficiently represent the estate of the deceased Shyam Sundari and therefore, the appeal would not abate. In Muthuraman v. Adaikappa, AIR 1936 Mad 336, it has been propounded that there is a difference between cases in which the original party to the action dies and his legal representative is not brought on the record and cases in which only one of the several representative brought in as such during the pendency of an action dies and the estate continues to be represented by the remaining legal representatives, it was held that in the second group, there would be no lack of representation of the estate as the remaining represen tatives can as well represent the estate as the original group did.;