Heard.
This petition has been filed challenging the order dated 18.12.2020 passed in Civil Appeal No. 183 of 1998: Tripti Nath and others Versus Ram Aasrey and others.
It has been submitted by learned counsel for the petitioners that Civil Suit No. 164/1980: Ram Aasrey and others Vs. Vansh Bahadur Singh and others has been decided by the Additional Civil Judge, Sultanpur by order dated 04.08.1998 in favour of the plaintiffs. Aggrieved by the order dated 04.08.1998 a Civil Appeal bearing No. 183 of 1998 has been preferred in the name of Tripti Nath and others (the substituted legal heirs of the original defendants) Versus Ram Aasrey and others. During pendency of Civil Appeal, some of the defendants expired and the legal heirs have been substituted. One of the appellants Smt. Surti Devi wife of Late Vansh Bahadur Singh also expired on 30.03.2010. Smt. Surti Devi had executed a registered sale deed in favour of the present petitioners and therefore, an application for substitution of present petitioners was filed on 05.05.2020. The application was rejected on 28.09.2020 by the first appellate court on the ground that substitution application had been filed by Samar Bahadur Singh and not by the legal heirs of Smt. Surti Devi, who were sought to be substituted.
It is the case of the petitioners that the application was filed by them and not by Samar Bahadur Singh. It was only verified by Samar Bahadur Singh, therefore, the order that was passed on 28.09.2020 was erroneous.
The petitioners again filed an application under Order 22 Rule 3 for substitution of the petitioners in place of appellant No.2. This application was filed on 04.12.2020 along with an application for condonation of delay. The application has been rejected on the ground that it has not been accompanied by any application for setting aside abatement. Smt. Surti Devi had died on 30.03.2010 and the second substitution application was filed on 04.12.2020.
This court on perusal of order passed by the first appellate court finds that no doubt the first appellate court has mentioned the correct facts regarding abatement of the appeal in so far as Smt. Surti Devi was concerned, till the legal representatives of Smt. Surti Devi were not brought on record is true. If the legal representatives of Smt. Surti Devi had filed an application for substitution along with application for condonation of delay, opportunity should also have been given by the learned appellate court to them to file an application for setting aside abatement.
The litigant is not supposed to know the technicalities of law. On some mis-concieved legal advice only two applications had been moved. One for condonation of delay and one prayer for substitution, but no application for setting aside abatement was moved. The Hon'ble Supreme Court has observed in the case of Rafiq Vs. Munsilal 1981 (2) SCC 788 has held that the litigant cannot be allowed to suffer because of fault of an Advocate.
The petition is disposed of with the direction to the petitioners to file an application for setting aside abatement within one week from today along with fresh application for condonation of delay and for substitution before the learned first appellate court. The learned first appellate court shall consider the same and pass appropriate orders thereon in accordance with law within four weeks thereafter.
Order Date :- 22.2.2021 Arvind