- (1.) J. C. Gupta, J. This is tenant's peti tion for quashing the order dated 8-1-1998 and 19-2-96 passed by respondents No. 1 and 2 respectively.
(2.) FACTS, admitted or found to have been established by the Court below may be put in brief. Father of respondents No. 3 to 7, Ram Narain, moved an application under Section 21 (l) (a) of Regulation of Letting, Rent and Eviction (U. P. Act No. XIII of 1972), hereinafter referred to as the Act', for the release of the disputed accom modation against the petitioner. By means of the order dated 20-1-89, the Prescribed Authority allowed the said application. The petitioner filed rent appeal No. 12 of 1989 in the court of District Judge which was transferred for hearing and disposal to the court of Respondent No. 2. During the pendency of the appeal, Ram Narain landlord died on 14-1-95. On 30-8-95 an application was moved on behalf of the legal representatives of the deceased landlord for dismissing the appeal on the ground of not bringing legal heirs of the deceased landlord on record. This applica tion was accompanied with an affidavit and the death certificate of Ram Narain. A copy of the said application was also served upon the Counsel for the appellant. Till 12-2-96, no objections were filed on behalf of the appellant to the aforesaid applica tion nor any application was moved for substitution. Arguments on the aforesaid application were heard on 12-2-96 and 19-2-96 and ultimately appeal was dis missed on the same day, i. e. 19-2-96. The said order was not challenged by the petitioner in any court of law. However, on 4-4-96, an application alongwith an af fidavit was moved for bringing on record the legal representatives of the deceased landlord, after condoning the delay. It was stated therein that the application for sub stitution had been prepared on 13-2-95 itself but the same was filed in a wrong court due to the mistake of the clerk of the Counsel. The appellant had been search ing the said application and after rinding out the same he has filed this application. Alongwith the substitution application, another application was moved for recall ing the order dated 19-2-96 dismissing the appeal. Objections were filed on behalf of the respondents No. 3 to 7 and the court below summoned the record of the Oath Commissioner and also the witnesses whose affidavits were filed in support of the petitioner's case. It has been found by the court below that the petitioner's asser tion itiiat the substitution application had been prepared on 13-2-95 was not correct rather the finding is that a forgery appears to have been committed in the affidavit and it has been antedated. It has also been found by the court below that it was highly doubtful that the said application had been filed in a wrong court and was returned to the appellant after the dismiss al of the appeal. With these findings, the Court below had rejected the petitioner's application. Aggrieved by the impugend order dated 8-1-98, the petitioner has come up in this writ petition. Learned Counsel for the petitioner contended before this court since provisions of Rule 25 of the Rules framed under the Act are merely directory, there fore, even if the substitution application had not been moved within time, the ap peal should not have been dismissed as abated. It has also been argued that the view taken by the court below that the application for recalling the order dated 19-2-96 amounted to reviewing the order was not correct as through that application a prayer was made for setting at naught a wrong order passed earlier by the court. Learned Counsel argued that Rule 25 simply provides for substitution of the names of the heirs or legal representatives of any person who was a party to the proceeding and died during the pendency of the same and it nowhere states about the consequences which were to follow for not moving the application for substitution in time and this provision is unlike the provisions contained in Order 22, C. P. C. wherein it is specifically provided that failure to bring legal representatives of the deceased party may result in abatement of suit or appeal as the case may be. In sup port of his argument, learned Counsel for the petitioner placed reliance on a Division Bench decision of this Court in the case of Subhash Chandra Saxena v. Prescribedauthority, 1981 ARC 247. Iifthis case it was held that Rule 25 of the Rules framed under the Act provides a period of one month for making an application for substitution for bringing on record the legal representatives of a deceased party. This Rule, however, does not state anywhere of the effects if such an applica tion is not made within time. There is nothing in this Rule to indicate that the proceedings will abate if no application is made within a month of the date of the death of a party. Since the Rule is silent in this regard the provisions of this Rule can at best be directory and not mandatory. In this case the landlord had filed an applica tion for ejectment of the original tenant Ram Chandra Saxena under Section 21 of the Act. During the pendency of the same Ram Chandra Saxena died. The landlord moved an application for substitution of the names of only two sons of the deceased tenant namely Kailash Chandra Saxena and Subhash Chandra Saxena. The said application was allowed on 22-5-1976. Subhash Chandra Saxena, the petitioner before the court thereafter filed an objec tion stating that since some of the legal representatives were deliberately avoided to be impleaded as party, the release ap plication was liable to be dismissed. The landlord thereupon moved an application under Order 1, Rule 10, C. P. C. read with Rule 22 (f) framed under the Act for the impleadment of the two other sons of the deceased tenant. This application was al lowed and against this order writ petition was filed in this court. It is in the light of these facts that the order allowing im pleadment of the other two heirs beyond the time prescribed under Rule 25 was held not to be in contravention of law and the proceeding not to have abated. Reliance has also been placed upon Dr. Purshottam Das Dwivedi v. District Judge, Jalaun at Oral, 1996 (28) AIR 234, 1996 (2) JCLR 477 (All ). Hon'ble Sudhir Narain, J. held in the said decision that neither Section 34 nor Rule 25 provides for abatement of the proceedings in case of death of the tenant or landlord who is a party in the proceedings. It was further held that in case, the party in the proceed ings dies and on the date of hearing of the case, there is no application for substitu tion, the Court, may pass appropriate order in accordance with law, taking into consideration the death of such party. In case, application is filed for substitution of the heirs of the deceased after expiry of the period of limitation as provided under Rule 25 (1) the Court may consider it keeping in view that this provision is direc tory. In that particular case, the Court accepted the version of the petitioner that, steps for filing the substitution application had been taken within the prescribed period of limitation and that version was not disbelieved by the courts below. It was further found that the applicant had acted in good faith and the mistake was bond fide. It was due to the mistake of the clerk of the Advocate that the application for substitu tion could not be moved within time. In these circumstances, the order dismissing the appeal as abated was set aside. Reliance has also been placed on a decision rendered by the same Hon'ble Judge in the case of Mis. G. R. Bhargava and Sons v. The Prescribed Authority and others, 1995 (2) AIR 128 wherein it was held that even if the substitution applica tion was filed beyond the period of limita tion of one month as provided under Rule 25, still it hi -. to be considered and may be allowed.
(3.) FROM the respondent side reliance has, however, been placed upon the case of Deena Nath and another v. Special Judge/a. D. J. , Azamgarh, 1995 (1) AR. C. 30 wherein it was held that it is true that Rule 25of the Rules framed under the Act does not make a mention of abatement but even so the proceedings could not be kept pending for all times to come in the expec tation of someone appearing and filing a substitution application some day. The learned Judge further held that the p' that proceedings under Section 21 of the Act could not be treated as having abated despite substitution not having been made and the matter would have had to be kept pending is not tenable. Learned Counsel for the respon dent further invited the attention of the Court to the decision of the case ofpuran Singh and others v. State of Punjab and others, AIR 1996 SC 1092. This decision was of course rendered in relation to the writ proceedings but in my opinion the ratio laid down therein can conveniently be applied to the provisions of Rule 25 of the Rules framed under the Act. In that case the death of a party had occurred during the pendency of the writ petition before the High Court. The Apex Court proceeded to deal with the problem on the basis of the provisions contained in Order Xsxii of C. P. C. , are not applicable to writ proceedings. Their lordships held "even if it is held that Order XXII of the Code is not applicable to writ proceedings or writ ap peals, it does not mean that the petitioner or the appellant in such writ petition or writ appeal can ignore the death of the respondent if the right to pursue remedy even after death of the respondent sur vives. After the death of the respondent it is incumbent on the part of the petitioner or the appellant to substitute the heirs of such respondent within a reasonable time. "as no time limit is provided in the Rules, it was further observed that in the absence of any prescribed period what should be a reasonable time, the Court may take note of period prescribed under Article 120 of the Limitation Act for substituting the heirs of the deceased defendant or the respondent which is 90 days. The Supreme Court further observed that there is no question of automatic abatement in such proceedings and if such an application is field beyond the period of 90 days of death of such respondent, the Court may take into consideration the facts and cir cumstances of that particular case for the purpose of condoning the delay in filing the application for substitution of the legal representatives and this power has to be execised on well know and settled. prin ciples in respect of exercise of discretion ary power by the High Court. If thecourt is satisfied that the delay, if any, in substitut ing the heirs of deceased respondent was not intentional and sufficient cause has been shown for not taking timely steps, the Court can substitute the legal repre sentatives and proceed with hearing or the case. At the same time the High Court has to be conscious that after lapse of time of valuable right accrues to the legal repre sentative of the deceased respondent and he should not be compelled to contest a claim which due to the inaction of the petitioner or the appellant has become final.;