(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. We have heard learned counsel Mr.M.B.Gandhi for the appellant, learned AGP Mr.N.J.Shah for the respondent No.1 and learned counsel Mr.Dipen Desai assisted by learned advocate Ms.Vyoma Jhaveri for the respondent No.2.
2. Learned counsel Mr.M.B.Gandhi for the appellant has urged that, without filing the substitution application in law is permitted to file only delay condonation application and application for setting aside the abetment, and after the delay is condoned and application for setting aside the abetment then he will file the substitution application. We are not in agreement with the arguments advanced by learned counsel for the appellant.
3. Learned counsel Mr.Gandhi has placed reliance on a decision in the case of Mahendra and others Vs. Rawata Ram (by L.Rs.) and Another reported in AIR 2009 Rajasthan 98.
4. We have gone through the application filed by the appellant before the learned Single Judge. The prayer made in para 5 is quoted as under:
“(a) This Hon'ble Court be pleased to allow this application.
(b) This Hon'ble Court be pleased to condone the delay of 156 days caused in filing the present application and be further pleased to set aside the abetment which has occurred and the main petition with all the original orders be restored to file and be further pleased to grant an opportunity to the present applicant to try the main petition, in the interest of justice.”
5. We do not find any prayer has been made by the appellant for bringing the heirs on record. In absence of any application for substitution or any prayer for bringing the heirs on record, the simple application filed by the appellant for condonation of delay and for setting aside the abetment was not maintainable. The decision of Rajasthan High Court in the case of Mahendra and others (supra) relied upon by learned counsel for the appellant is not applicable to the facts of the present case. We do not find any merits in the appeal and the appeal fails and is accordingly dismissed. However, we have not interfered with the impugned order passed by the learned Single Judge, it shall be open for the appellant to file an appropriate application for condoning the delay and setting aside the abetment and the application for bringing the legal heirs of the deceased petitioner on record.
6. Consequently, Civil Application No.1664 of 2012 does not survive and shall stand dismissed with no order as to costs.
(V.M. SAHAI, J.) (A.J.DESAI, J.) syed/