- (1.) SHISHIR Kumar, J. The present, writ petition has been filed for quashing the order dated 13-9-2005 (Annexure 4 to the writ petition) passed by the Additional District Judge, Court No. 4 Hamirpur and order dated 19-1-2005 passed by the Civil Judge (Junior Division), Hamirpur.
(2.) THE facts arising out of the present writ petition are that the respondent No. 1 filed an Original Suit No. 10 of 1997 against the petitioners' predecessors Shivraj and Prabhu Dayal for cancellation of sale- deed dated 12-1-1989. During the pendency of the said suit, the defendant No. 1 Shivraj died on 18-7- 2002 and the other defendant Prabhu Dayal also died on 27-5- 2001. THE plaintiff respondent and his Counsel was having the said information about the date of death but no application for substitution was moved within time. An application was moved on 21-4-2003 describing the same under Order XXII Rule 2 and under Order VI Rule 17 of the Civil Procedure Code. An objection was filed on behalf of the petitioners that the application under Order XXII Rule 2 and under Order VI Rule 17 of Civil Procedure Code is not maintainable and no amendment application can be given to substitute Shivkali W/o Shivraj on the date of filing the said application Shivkali W/o Shivraj has already died. No date regarding the date of death of the persons to whom application of substitution has been made has not been given. Both the parties are living in the said village in a very short distance, therefore, it cannot be presumed that they had no knowledge regarding the death of Shivraj who died on 18-7-2002 and Prabhudayal died on 27-5-2001. It has further been stated that as the application has been filed after 150 days and no prayer in the application for setting aside the abatement has been made or any application has been filed, therefore, the application for substitution cannot be considered but the trial Court without taking into consideration the aforesaid fact, has allowed the said application vide its order dated 19-1- 2004. The petitioners aggrieved by the aforesaid order, has filed a revision and the revision too has been dismissed by order dated 13-9-2005. A copy of the same has been filed as Annexure 4 to the writ petition. It has been submitted on behalf of the petitioners that as the parties are living in the same village and their houses are nearby in the village, as such, it cannot be believed that they were not having any knowledge regarding the death. It has also been stated that as no date has been mentioned regarding the date of death of the persons to be substituted, as such, the application was not maintainable. It has also clearly been averred that the plaintiffs-respondents have participated in the funeral and their substitution application has not been filed within time and without making an application for setting aside the abatement and even Section 5 application has not been filed, therefore, the application for substitution cannot be allowed.
(3.) A finding to this effect that respondents came to know regarding the death of the defendants on 21- 8-2003 is not turn out from any relevant evidence that how they came to know on that date regarding date of death. In view of the aforesaid fact, the petitioners submit that the impugned order is liable to be set aside. Reliance has been placed upon two judgments of the Apex Court reported in 1997 (2) JCLR 871 (SC) : 1997 (8) JT 189 SC, P. K. Ramachandran v. State of Kerala and Anr. , and reliance has been placed upon Para 6 of the judgment. The same is being reproduced below:- "law of limitation may harshly effect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs. ";