- (1.) R. H. Zaidi, J. This petition has been filed by the petitioner under Article 226 of the Constitution of India challenging the validity of the order dated 4-9-87 passed by 1st. Addl. Civil Judge, Jaunpur, allowing the application for condonation of delay in filing the application for Impleadment of heirs and legal representatives of Govind one of the plaintiffs and for impleadment of Smt. Chhabiraji as respon dent No. 4 in Civil Appeal No. 323 of 179.
(2.) THE facts of the case, which are relevant for the purposes of the decision of the question involved in the present petition, are that original suit No. 145 of 1972 was filed by plaintiffs, i. e. Bhulai and Govind for mandatory injunction and demoli tion. During the pendency of the suit Bhulai died and on his death his heirs and legal representatives were substituted as plaintiffs No. 1/1 to 1/7. THE suit was decreed on 2-8-79. Against the said decree Civil Appeal No. 323 of 1979 was filed by defendants. In the meanwhile Govind died leaving behind his heirs and legal representatives on 19-6-85. On 6-7-87 an application was filed on behalf of the plaintiff-respondents before court below praying that since Govind or his heirs were not imp leaded in the appeal, the decree passed by the trial Court in this favour become final. THE appeal was, therefore, liable to be dismissed as incom petent. A copy of the said application is alleged to have been supplied to the coun sel for contesting respondents. THEreafter, on 21-8-87 an application 37/ka alongwith the application under Section 5 of the Indian Limitation Act was filed by the respondents (appellants) praying that the appellants be permitted to implead heirs of Govind and Smt. Chhabiraji as respondents in the appeal. It was stated that in the decree prepared by the trial Court, the name of Govind was not men tioned, consequently, his name could not be typed in the memo of appeal and the name of Smt. Chhabiraji could not be typed on account of bonafide typing mistake. It was also stated that the senior counsel of the appellant could not attend the court for a period of about one month on account of his illness, therefore, the delay in making the said application was liable to be condoned. The court below after hearing the counsel for parties, was pleased to con done the delay and to permit the impleadment of heirs of Govind and Smt. Chhbiraji in the appeal vide its order dated 4-9-87. Petitioners have, therefore, challenged the validity of the said order by means of present petition as stated above. I have heard learned counsel for the parties.
(3.) SINCE the requisite affidavits have already been exchange, which form part of the record, as desired by learned counsel for the parties and with a view to avoid delay in disposal of the appeal, which is pending in the court below, I have heard the petition finally. It has been urged by learned counsel for petitioner that the court below has acted illegally in allowing the applications filed by respondents for impleadment of the heirs of Govind and for condonation of delay. He has also submitted that ap peal filed by respondents stood abated and court below had no jurisdiction to con done the delay in making the application for impleadment without setting aside the abatement of appeal.;