- (1.) O. N. Khandelwal, J. Respondent Nos. 1 and 2 (landlords) had filed a suit for eviction and recovery of rent and damages against tenants Shanti Devi and Vidya Devi (respondent Nos. 3 and 4) and sub-tenants Hazari Lal and Mewa Lal. Mewa Lal died issueless on 16-6-1988, his widow Smt. Ram Janki also died on 25- 10-1996. Application for substitution was moved on 12-5-2000 alleging that the brother of the deceased Mewa Lal (i. e. Hazari Lal) is already on record, therefore, the consequential amendment should be permitted and abatement, if any, should be set aside after condoning the delay. That application has been allowed by the JSCC/additional District Judge Bahraich on 27-4- 2004, which is now under challenge in this revision.
(2.) THE defendants Nos. 1 and 2 (Namely Shanti Devi and Vidya Devi) who are Opposite Party Nos. 3 and 4 in this writ petition, in paragraph-16 of their written statement admitted this fact that the disputed shop was given to defendant Nos. 3 and 4 (Mewa Lal and Hazari Lal) on partnership and in paragraph-18 they had further admitted that they had started taking rent from them on account of adverse finding by the Trial Court and Appellate Court in a suit of accounting. Respondent Nos. 1 and 2 had specifically alleged in the plaint that Smt. Shanti Devi and Vidya Devi (respondent Nos. 3 and 4) are their tenants who have sub-let the premises in suit to Mewa Lal and Hazari Lal. Defendant Nos. 3 and 4 in their written statement admitted that they were permitted by Ram Pyari to run their business in shop in suit and according to the arrangement they have been paying rent to Smt. Ram Pyari and to Babu Ram. It was further alleged that Babu Ram had moved an application (No. 24/1977) for release of premises under Section 21 of U. P. Act No. 13 of 1972, which was dismissed by the prescribed authority on 22-12-1978 and the appeal No. 3 of 1979 was also dismissed on 22-3-1980 against which writ petition had been filed by the landlords which was pending in the High Court. The defendants of this case had moved an application to stay the proceeding till the disposal of the aforesaid writ but the same was rejected on 19-3-1982. Thereupon the proceedings of this eviction suit remained stayed on account of pendency of the writ petition No. 3414 of 1982, Mewa Lal & Ors. v. Rameshwar Prasad, which was ultimately dismissed in 1995. The order was not communicated to the trial Court. For the first time it came to know about the disposal of the writ petition on 21-4-2000 when the copy of the order passed in writ petition was filed.
(3.) THE plaintiffs moved an application No. C-46 dated 12-5-2000 for amendment and substitution alongwith an application No. C-47 for condonation of delay under Section 5 supported by an affidavit C- 48. It was specifically stated that the writ petition No. 3414/1982 filed by Mewa Lal and other defendant against the Courts order dated 19-3-1982 was pending before the High Court and the plaintiffs were under the impression that defendants must have moved an application for substitution. THE plaintiffs was not required to move any substitution application. Similar advice was given by their Counsel and they came to know in the Month of April 2000 that the Writ Petition has been dismissed whereupon they applied for copy of the order, Hazari Lal, heir of the deceased (Mewa Lal and his wife Smt. Ram Janki) is already on record as defendant No. 4, therefore, question of abatement does not arise. But in case it is held that abatement had taken place. In that case delay under Section 5 of Limitation Act be condoned and substitution be allowed. The revisionist Hazari Lal defendant No. 4 filed his objection 52-C dated 3-1-2001 that admittedly Mewa Lal (defendant No. 3) had died on 16-6-1988 and since her widow Ram Janki was not brought on record during the prescribed period of limitation, therefore, suit as against Mewa Lal had abated, Ram Janki had adopted her nephew Desh Raj Gandhi and therefore, he became her legal heir after her death on 25-10-1996 and thus the suit has abated and the application is barred by time.;