- (1.) S. U. Khan, J. Heard learned Counsel for the petitioners. At the time of arguments no one appeared on be half of the respondent even though the case was taken up in the revised list.
(2.) INITIALLY against the impugned or ders this petition was filed as F. A. F. O. Mo, 199 of 1979. Thereafter an application was filed that permission might be granted to convert the appeal in to writ petition. On 31 -10-1983 permission was granted, hence it was converted in to a writ petition. Plaintiff-respondent Surendra Nath Tiwari filed suit for specific perfor mance (O. S. No. 55 of 1969) against Ram Lakhan, who was arrayed as defendant No. 1 and the petitioners, who were arrayed as, subsequent pur chasers/defendants 2 to 7. The suit was for specific performance of an agree ment for sale allegedly executed by Ram Lakhan. During pendency of suit Ram Lakhan died. On 30-5-1977 plain tiff filed an application praying therein that against the name of Ram Lakhan in the array of the parties the word 'dead' be added. Objections were filed against the said application by the petitioners and it was stated in the said objection that Ram Lakhan had left behind his nephews as his heirs and legal repre sentatives. Thereafter an application was filed by the plaintiff on 12-12-1977 seeking amendment in his application dated 30-5-1977. In the application dated 12-12-1977 it was stated that plaintiff was under impression that as Ram Lakhan had sold the property, hence subsequent purchasers i. e. defendants 2 to 7 were his only succes sors. However, in view of the objections raised by the defendants 2 to 7, he was seeking amendment in his application dated 30-5-1977. It was prayed that plaintiff be permitted to add in his ap plication dated 30-5-1977 the prayer for bringing on record the nephews of Ram Lakhan as his legal representatives and abatement be set aside and delay in ap plying for the same be condoned. The said amendment application was op posed. The trial Court accepted the contention of the defendants-petitioners and held that suit, had al ready abated and substitution could not be allowed through amendment. This plea, to say the least, was out rightly ab surd. The trial Court further held that suit had abated not only against defen dant No. 1 but also against other defendants. Accordingly though order dated 31-1-1978 application of the plaintiff dated 12-12-1977 was rejected and it was confirmed that suit had already auto matically abated. Against the said order Miscellaneous Appeal No. 25 of 1978 was filed. VI A. D. J. Deoria allowed the appeal on 13-12-1978, set aside the order of the trial Court and allowed the amendment application dated 12-12-1977. It was fur ther directed that the proposed legal rep resentatives of defendant No. 1 shall be afforded opportunity of being heard by the Civil Judge and thereafter the matter shall be decided in accordance with law. The learned A. D. J. meant that the sub stitution application should be decided on merits. The said order of the Appel late Court has been challenged through this writ petition. Appellate Court rightly held that through amendment application dated 12-12-1977 prayer had clearly been sought to be, added in the original ap plication dated 30-5-1977 for setting aside abatement and substitution. The said application could itself be taken to be a substitution application. In the said application abatement was sought to be set aside and reason for delay was given. Appellate Court rightly held that it was not necessary to file separate ap plication for condonation of delay and setting aside abatement. All the prayers i. e. prayer for substitution, setting aside abatement and delay condonation could be joined in one application.
(3.) I do not see the least error in the judgment and order passed by the Ap pellate Court. The argument that appeal was not maintainable was also rightly repelled by the Appellate Court. Appeal was clearly maintainable under Order XLIII Rule 1 (k) C. P. C. Procedural law can not be per mitted to trample the proceedings with such force that the real controversy be tween the parties is buried under its dust or weight.;