- (1.) THIS is an appeal arising out of a suit filed by Shital Prasad, the plaintiff, for recovery of arrears of rent and for ejectment of the defendant Shri Krishan. During the pendency of the suit, Shital Prasad sold the house to Babu Lal Jain. An application was filed for the impleadment of Babu Lal Jain.
(2.) AN objection was raised to the maintainability of the suit on behalf of the defendant on the ground that as the plaintiff had sold the property to Babu Lal Jain on 14-1-1969, he was not entitled to get the decree. The objection was overruled on the ground that by the transfer of the house Shital Prasad, the plaintiff, did not lose interest in the property. The suit was decreed for the recovery of arrears of rent, but was dismissed for the relief of ejectment. Shital Prasad filed an appeal. His appeal was accepted, and the decree for ejectment was also granted in his favour. Aggrieved, Sri Krishan, the defendant, filed the present Second Appeal. After filing the appeal, an application was filed on behalf of the defendant Sri Krishan for impleadment of Babu Lal Jain. On 23-11-1971, the application was rejected on the ground that the impleadment of Babu Lal Jain was not necessary. This Court held that the defendant Shri Krishan shall have the benefit of the decision as against the transferee as well. During the pendency of the appeal, the defendant Sri Krishan died on 12-11-1972 and an application for substitution of his heirs was made on 9-1-1973. Meanwhile, Shital Prasad also died on 25-5-1974. On 28-7-1975, an application was filed on behalf of the heirs of the deceased Sri Krishan for impleadment of the heirs of the deceased Shital Prasad. In para 6 of the affidavit, the assertion made was that the applicants learnt about the death of Shital Prasad on 13-7-1975. The applicants claimed that they were out of touch with the family of the deceased Shital Prasad and had no knowledge about the death of Shital Prasad. Two counter-affidavits were filed an behalf of the heirs of the deceased Shital Prasad disputing that the applicants (heirs of the deceased Sri Krishan) had no knowledge of the death of Shital Prasad. It was asserted in the counter-affidavit that the Yatindra Mohan Sharma, one of the heirs of the deceased Sri Krishan, attended the 13th day ceremony on 7-6-1974. In the rejoinder, the reply given was evasive.
(3.) THE first thing that is required to be considered is about the delay in moving the application for impleadment of the heirs of Shital Prasad. This application was, admittedly, barred by time, having not been filed within 90 days of the death. After having perused the affidavits filed by the parties and hearing their counsel, I find that the applicants took a false case that they had no knowledge about the death of Shital Prasad From the counter-affidavit of the heirs of the deceased Shital Prasad, it is established that Yatindra Mohan Sharma attended the Tervi ceremony (last rites), and that he had knowledge of death of the deceased Shital Prasad. THE rejoinder affidavit does not give any satisfactory reply to the counter. To me, the affidavit filed on behalf of the heirs of the deceased Shital Prasad appears to be more reliable. THE applicants had taken a false case of the lack of knowledge about the death of Shital Prasad, to cover up the delay as the applicants knew about the death and gave an incorrect explanation for the delay in filing the substitution application, the application is liable to be rejected. That being so, the delay in filing the application is not liable to be condoned. Counsel for the applicants, thereafter, fell back upon the argument that since the applicants did not know about the requirement of filing the substitution application, the delay should be condoned. The argument is fallacious inasmuch as on the death of Sri Krishan these very applicants had filed a substitution application within 90 days. The argument therefore, of the learned counsel for the applicants is not convincing.;