Through this writ petition quashing of the order dated 13.11.2009 passed by Additional District Judge, Court No.6, Aligarh in Civil Appeal No. 22 of 2005 ( Deep Chandra vs Desh Raj and others) has been sought for by which the application of the respondents (plaintiff's) for amendment filed under Order 6 Rule 17 C.P.C. has been allowed on payment of Rs.500/- as costs. It appears that the father of the present respondent has filed suit praying decree of permanent prohibitory injunction against the defendants their agent, servants and subordinate employees from raising any construction after encroaching upon the Rasta and also from closing the phatak at first floor and window and Par-Nala etc. at first floor shown in read colour annexed with plaint.
Pending that suit it appears Deep Chandra has died and the present respondents have filed substitution application that was barred by time therefore an application was also filed under Section 5-C for condoning the delay in filing the substitution application. The application was rejected and consequently the suit abated.
Challenging this order a miscellaneous appeal was filed in the name of Deep Chandra in which present application for amendment seeking insertion of the names of present respondents was filed and the same has been allowed by the impugned order.
Learned counsel for the petitioner submits that miscellaneous appeal was not maintainable against an order rejecting an application filed under Section 5 of Limitation Act and the court below has erred in entertaining the appeal and passing impugned order.
I have heard learned counsel for the petitioner. Misc. appeal lies under Order 43 Rule 1 (K) against an order refusing to set aside the abatement on an application filed under Order 22 Rule 1 of the C.P.C. Here the application filed for condoning the delay in filing substitution by the present respondent was dismissed as barred by time and the suit has abated. The appeal against such order is very well maintainable. It appears due to fault of counsel the appeal was filed against that order in the name of dead person (late Deep Chandra), whereas he had already expired pending suit and application of the present applicant for substitution was rejected.
Sitting under Article 226 of the Constitution of India while exercising the discretionary jurisdiction, I am not inclined to interfere with the impugned order as no prejudice is caused to the petitioner and inconvenience caused to him has been compensated by imposing cost while allowing the amendment application.
The writ petition lacks merit and it is hereby dismissed. Order Date :- 3.2.2010 PKB