ORDER S.N. Srivastava, J.
1. This writ petition is directed against the judgment dated 3-1-1975 passed by Board of Revenue, dismissing the second appeal as abated on the ground that due to non-substitution of the heirs of Munni Lal-defendant within time, judgment of lower appellate Court became final and no conflicting decree could be passed, hence entire appeal was dismissed as abated.
2. Heard learned counsel for the parties.
3. Learned counsel for petitioner urged that Munnl Lal was a formal party in the case filed under Section 176 of the U.P.Z.A. and L.R. Act. As he neither filed written statement nor contested suit, suit cannot abate due to non-substitution of a pro forma defendant, though application for substitution to substitute heir of Munni Lal, though barred by time, was not considered while dismissing the appeal.
4. Learned counsel for Opp. Party urged that the order was rightly passed in accordance with law and appeal was rightly dismissed as abated.
5. After considering the arguments of learned counsel for the parties and from perusal of the record, I am of the view that writ petition deserves to be allowed.
6. The fact that Munni Lal was a pro forma defendant is not denied in the counter affidavit. There is another aspect which was not considered by the Board of Revenue while passing the order that an application for condonation of delay along with substitution application was already on record. The reason disclosed in delay condonation application was that heirs of Munni Lal were not aware of the fact of pendency of the appeal. This fact was specifically pleaded in Paragraph-7 of the writ petition also which was not denied in the counter affidavit.
7. In pending second appeals arising out of suits in U. P. Z. A. and L. R. Act, in the prevailing circumstances in rural India, it is not expected that father brought to the notice of heirs of pendency of litigation and the heirs were also keeping constant vigil on the pending case. Once the application for substitution along with delay condonation application was filed Board of Revenue acted illegally in dismissing appeal as abated without passing orders on delay condonation application and substitution application available on record. My view in this case is also supported by law laid down by the Apex Court in the matter of substitution and condonation of delay reported in (1998) 7 SCC 123 : (AIR 1998 SC 3222), N. Balakrishnanv. M. Krishnamurthy and (1985)1 SCC 163 : (AIR 1985 SC 1), Sital Prasad Saxena v. Union of India.
8. As impugned order of Board of Revenue was passed on 3-1-1975, after 19 years I do not consider it appropriate to remand the case for reconsideration on the question of delay condonation and substitution application again. I perused the substitution application and also explanation given by petitioner for condoning delay. I am of the view that sufficient cause has been shown for condonation of delay in filing substitution application. Accordingly substitution application deserves to be allowed.
9. In view of the above backdrop impugned order dismissing appeal as abated suffers from error of law apparent on the face of the record and the same is liable to be quashed.
10. With the result writ petition succeeds and is allowed. Impugned order dated 3-11975 passed by Board of Revenue is quashed. Board of Revenue is directed to decide the appeal after hearing the parties on merits in accordance with law within six months from the date of production of certified copy of this order.
11. There shall be no order as to cost.