Court No. - 30
Case :- MATTERS UNDER ARTICLE 227 No. - 2262 of 2018 Petitioner :- Munish Chandra Agarwal Respondent :- Prakash Chandra @ Maniram And 34 Ors. Counsel for Petitioner :- Vivek Kumar Singh,Bhagwati Prasad Singh (Senior Advocate),Deen Dayal Mishra,Radha Mohan Pandey Counsel for Respondent :- Rahul Sahai
Hon'ble Vivek Kumar Birla,J.
Heard Sri B.P. Singh, learned Senior Counsel along with Sri Vivek Kumar Singh, learned counsel for the petitioner- defendant and Sri Rahul Sahai, learned counsel for the respondent no. 4-plaintiff and perused the record.
Present petition has been filed with the following orders:
"I- Issue a direction in nature of supervision to set aside the order and judgement dated 03.02.2018 passed by Civil Judge Senior Division (Fast Track Court) Budaun in Civil Original Suit No. 83 of 1989 between Prakash Chandra Vs. Uday Veer and others.
II- Issue a direction in nature of supervision to set aside the order and judgement dated 14.03.2018 passed by the District Judge, Budaun in Civil Revision No. 07 of 2018 (Munish Chandra Agrawal Vs. Prakash Chandra and others).
III- Issue a direction in nature of super vision to set aside the order dated 27.03.2018 and 29.03.2018 passed on application 308Ga and 319.
IV- Issue a direction in nature of supervision to stay the eviction of petitioner from house in question and also be pleased to stay the further proceeding of suit no. 83 of 1989, pending before Civil Judge Senior Division (Fast Track Court, Budaun."
By the impugned order dated 3.2.2018 passed by the Civil Judge (Senior Division) (Fast Track Court), Budaun in Civil Original Suit No. 83 of 1989, an application filed by the plaintiffs-respondents under 22 Rule 4 CPC for substitution of legal heirs of defendant no. 5, who is proforma defendant in the suit, was allowed on payment of cost of Rs. 100/- and objections raised by the defendant (petitioner herein) were rejected. Against the same, revision was preferred by the defendant no. 2, which was also rejected and taking note of the fact that the suit is of the year 1989, the case has been directed to be decided on-day-today basis.
An application being paper no. 308Ga was filed by the defendant no. 2 with the prayer to issue summons to the defendants no. 5/1 to 5/5 and defendants no. 20 to 24. The aforesaid application was rejected vide order dated 27.3.2018 imposing cost of Rs. 3,000/-. Vide order dated 29.3.2018 the application being paper no. 319Ga filed by the defendant no. 2 regarding jurisdiction of the Court was also rejected.
The main argument of the learned counsel for the petitioner-defendant was on the orders allowing the application filed by the plaintiff under Order 22 Rule 4 CPC for substitution of legal heirs of defendant no. 5, who is proforma defendant in the suit.
By drawing attention to annexure 3 application paper no. 67/A1 whereby application was moved to substitute the legal heirs of proforma defendant no. 5, is being challenged on the ground that the application was filed after much delay and after expiry of 90 days suit automatically stood abated, therefore, it was necessary to file an application for setting aside the abatement and the application supported by an affidavit dated 18.10.2003 being paper no. 152-C was inconsequential and could not have been taken shelter of for the purpose of allowing the application under Order 22 Rule 4 CPC.
Per contra, learned counsel for the respondents has pointed out that the suit was filed in the year 1989 and issues were framed in the year 1992 but till date because of the request that the defendant no. 2 was filing applications one after another and carrying up the matter to this Court and repeatedly even the evidence could not take place. On merits, he submits that a finding has been recorded by the trial Court as well as appellate Court that the application under Order 22 Rule 4 CPC was in fact filed on 28.4.1999 in the Court but endorsement on the order sheet was not made by the Clerk as the Court was vacant. It was also found that in case 90 days expires on 27.4.1999, the application appears to be delayed by one day. In the interest of justice, the delay was condoned and application has been allowed. It was also found by the revisional Court that the trial Court has committed no mistake in law and accordingly the revision was dismissed.
I have considered the rival submissions and perused the record.
Once the finding has been recorded by both the Courts below that the application filed along with affidavit being paper no. 67/A1 dated 28.4.1999 was filed in the Court on that day. In that case there can be a delay of not more than one day and application for condoning the delay was moved on 18.10.2004, which was supported by an affidavit and same reasons were given in the application and the affidavit, which was accepted by the Court below. It is not in dispute that this application for condoning the delay was filed on 18.10.2004, however, in between the litigation in the Court was pending for some time as the Court was vacant and litigation on his issue itself was pending between the parties and ultimately to avoid any legal complication this application was moved.
Under such circumstances, in the opinion of the Court, that in case there is delay in filing the application under Order 22 Rule 4 CPC and once the finding has been recorded by the Court below that the application was, at the most, delayed by one day only, the interest of substantial justice has been served particularly, in view of the fact that the defendant no. 5 was only proforma defendant in the suit.
Insofar as other orders are concerned, I do not find any legal infirmity in the orders impugned and I find that on several trivial issue matter is being agitated by the respondent no. 2 who is in possession of the property. Even otherwise Sri Sahai has pointed out that summons have been issued to the defendants no. 5/1 to 5/5 and defendants no. 20 to 24 and therefore, in fact the challenge to the order dated 27.3.2018 has become meaningless.
Insofar as the order dated 29.3.2018 is concerned, the objections taken appears to be frivolous in nature as the Civil Judge (Junior Division) continues to have jurisdiction over the suit valuation of Rs. 13,880/-, which is valuation of the present suit.
In such view of the matter, I do not find any good ground to interfere with the orders impugned herein.
Present petition lacks merit and is accordingly dismissed. No order as costs.
Order Date :- 26.4.2018 Abhishek