Court No. - 19
Case :- S.C.C. REVISION No. - 161 of 2018 Revisionist :- Brahmn Dev Lal (Since Deceased) And Another Opposite Party :- Somwati Awasthi (Since Deceased) And 2 Others Counsel for Revisionist :- Prateek Sinha
Hon'ble Manoj Kumar Gupta,J.
The instant revision under Section 25 of the Provincial Small Cause Courts Act, 1887 has been filed challenging the order dated 6.11.2018 passed by the Court of Small Causes in SCC Suit No. 2/2009. By the said order, the application filed by the revisionist seeking substitution in place of Brahm Deo Lal in the suit has been rejected.
The suit was instituted by one Smt. Somwati Awasthi against the tenant Kishore Kumar Gupta. During the pendency of the suit, the plaintiff died. Two set of substitution applications were filed, one by Indu Kumar Dwivedi, who claimed substitution on basis of a registered Will left behind by the deceased plaintiff and another by Brahm Deo Lal, on basis of a subsequent Will said to have been executed by the plaintiff, though it was unregistered. The Court below gave preference to the registered Will and permitted substitution of Indu Kumar Dwivedi and rejected the substitution application filed by Brahm Deo lal. Aggrieved thereby, Brahm Deo Lal filed SCC Revision No. 287/2016 before this Court. The revision was alllowed by this Court by order dated 7.9.2016 and thereby Brahm Deo Lal was also directed to be substituted along with Indu Kumar Dwivedi. Indu Kumar Dwivedi challenged the order passed by this Court before the Supreme Court in Civil Appeal No. 8078 of 2018, which was allowed and the order of this Court permitting substitution of Brahm Deo Lal was set-aside. The Supreme Court further observed that since Brahm Deo lal had already instituted a civil suit for declaration of his rights, the said suit would continue, but the present proceedings would be continued by Indu Kumar Dwivedi, as heir and legal representative of the deceased plaintiff Smt. Somwati Awasthi.
According to the revisionist, Brahm Deo Lal died on 16.2.2017 leaving behind a Will in favour of three sons and the revisionist herein namely, Abhishek Nigam. Consequently, Abhishek Nigam filed an application for his substitution in the proceedings in place of Brahm Deo Lal, which application has been rejected by the impugned order, keeping in view the judgment of the Supreme Court.
Learned counsel for the revisionist submitted that the order of the Supreme Court was nonest in the eyes of law, as it was passed against a dead person i.e. Brahm Deo Lal, who had died on 16.2.2017, while the judgment of the Supreme Court was rendered on 7.8.2018.
A perusal of the judgment of the Supreme Court reveals that it was passed after hearing counsel for both the parties. Moreover, assuming that Brahm Deo lal had died during the pendency of the appeal before the Supreme Court, it seems that no such information was furnished even though the parties were duly represented through their counsel, as recorded in the order of the Supreme Court. Learned counsel for the revisionist also does not dispute that till date no application for recall of the order of the Supreme Court was filed on the ground that the order had been passed against a dead person. In such view of the matter, I am of the considered opinion that the Court below had rightly placed reliance on the order of the Supreme Court in declining the request of Abhishek Nigam for substitution in place of Brahm Deo Lal inasmuch as, the Supreme Court had already turned down the claim of Brahm Deo Lal for substitution in place of the deceased plaintiff.
The revision lacks merit and is dismissed.
(Manoj Kumar Gupta, J.) Order Date :- 19.12.2018 AM/-