Hon’ble Ram Surat Ram (Maurya), J.—Civil Misc. Substitution Application No. 229872 of 2012

Heard Sri Ashish Kumar Srivastav, for the applicant in the aforementioned substitution application and Sri H.B. Lal, for the respondents.

2. On the death of Ram Kishan (sole petitioner) on 9.6.1993, this application for substitution has been filed by Narsingh son of Radha Kishan son of Radha Kishan, (as Radha Kishan also died on 14.1.1998), alongwith an application for condonation of delay i.e Civil Misc. Delay Condonation Application No. 229870 of 2012 and an application for setting aside abatement i.e Civil Misc. Application (For Setting Aside Abatement) No. 229871 of 2012. In support of the applications, an affidavit of Narsingh was filed, in which he had stated that he being a villagers had no knowledge about the legal proceedings for the filing of the substitution application within time as such the substitution application could not be filed within time. He came to Allahabad on 1.8.2012 for making inquiry in his case and tried to contact Sri S.K. Saxena, Advocate (who has been elevated to the Bench) but could not contact him. Then he met with Sri Ashish Kumar Srivastav, Advocate and informed him about the death of the sole petitioner and his son. Sri Ashish Kumar Srivastav, Advocate then advised to file substitution application. The applications, affidavit were drafted and prepared on 6.8.2012 and filed on 8.8.2012 without any further delay.

3. Chandan Singh son of Ghasi (respondent-8) filed a Counter-affidavit to the aforementioned Affidavit. In the Counter-affidavit, it has been stated that by virtue of Chapter VIII Rule 38-A, of the High Court Rules, the provisions of Order 22 C.P.C. have been applied to the writ proceedings. For filing of the substitution application, 90 days limitation has been provided but the application has been filed after about 20 years. Radha Kishan son of Ram Kishan (sole petitioner) was not substituted as such Narsingh has no right to be substituted as an heir of Ram Kishan. On expiry on 90 days from the date of death, the writ petition has been abated and 60 days limitation has been provided for filing an application for setting aside abatement. No application for condoning the delay in filing the application for setting aside abatement has been filed as such the application is liable to be rejected as time barred. Due to some dispute being raised in respect of possession over the land in dispute, as due to abatement of the writ petition, stay has been automatically discharged, Narsingh came to Allahabad and filed the substitution application alongwith delay condonation application and the application for setting aside the abatement, which are not maintainable.

4. The substitution application has been hotly contested by the counsel for the respondents. The counsel for the petitioner submitted that Supreme Court has held that illiteracy and poverty are sufficient cause for condonation of delay. He submitted that Radha Kishan and Narsingh had no knowledge of the procedure of the Court for moving substitution application on the death of a party as such the substitution application could not be filed within 90 days of the death. Ignorance of the procedural law is sufficient cause for condonation of delay. He submitted that Sri S.K. Saxena, Advocate (as he was then) was selected in Higher Judicial Services, U.P. and thereafter elevated to the Bench of the High Court as such for a long time there had been no communication from either side. Narsingh came to Allahabad on 1.8.2012 for making inquiry in his case and tried to contact Sri S.K. Saxena, Advocate (who has been elevated to the Bench). Then he met with Sri Ashish Kumar Srivastav, Advocate and informed him about the death of the sole petitioner and his son. Then on the advise of the counsel, substitution application has been filed. The applications, affidavit were drafted and prepared on 6.8.2012 and filed on 8.8.2012 without any further delay.