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2019 Supreme(All) 873
IN THE HIGH COURT OF ALLAHABAD
Harsh Kumar, J.
Chhandi – Appellant
Versus
Anita and Others – Respondents
Second Appeal No. 1164 of 1992
Decided On : 25-07-2019
K.N. Saxena, Adv., Atul Dayal, Adv., S.B. Yadav, Adv., Shiv Bahadur Yadav, Adv., V.K. Singh, Adv., R.K. Shukla, Adv., Rakesh Kumar Shukla, Adv., Ruduvant Pratap Singh, Adv.
The main legal point established is the court's authority to allow substitution of legal representatives, set aside abatement, and condone delay in moving substitution applications, as supported by relevant legal provisions and case laws.
Headnote:
Abatement - Substitution of Legal Representative - Amendment - Order XXII Rule 4 C.P.C, 1972 AIR(All) 456, 1964 AIR(All) 233
Fact of the Case:
The appeal faced abatement due to the death of a respondent. The appellant moved for substitution and amendment, while the proposed respondent claimed to be the legal heir through inheritance and a registered sale deed.
Finding of the Court:
The court allowed the amendment and substitution applications, citing legal precedents that support the allowance of substitution of legal representatives and setting aside of abatement. The court also condoned the delay in moving the substitution application.
Issues: Abatement of appeal, Substitution of legal representative, Delay condonation, Impleadment application
Ratio Decidendi: The court relied on legal provisions under Order XXII Rule 4 C.P.C and referenced case laws to support its decision to allow the substitution and amendment applications and set aside the abatement.
Final Decision: The court allowed the amendment and substitution applications, rejected the abatement application, and dismissed vague impleadment applications.
JUDGMENT :
Harsh Kumar, J.
Heard Shri Shiv Bahadur Yadav, learned counsel for appellant and Shri Ruduvant Pratap Singh, learned counsel for proposed respondent no.2/1 Raju and the third party applicant and perused the record.
2. Order on Civil Misc. Abatement Application No.12 of 2019, Civil Misc. Delay Condonation Application No.14 of 2019, Civil Misc. Substitution Application No.15 of 2019 & Civil Misc. Substitution Application No.17 of 2019
3. Abatement application supported with affidavit was moved by Raju on 25.1.2019 with the allegations that his father Govind Das-respondent no.2 has died during pendency of appeal on 6.10.2015 and since no substitution application has been moved, the appeal has abated and is liable to be dismissed as abated. Thereafter, appellant moved an application on 12.2.2019 for substitution of Raju being son and legal representatives of respondent no.2 Govind Das with an application for condonation of delay, supported with affidavit and another application was moved by appellant on 1.3.2019 for amendment in memo of appeal, upon death of respondent no.1 Smt. Anita supported with affidavit, wherein it was contended that respondent no.1 Smt. Anita wife of Rajan has died issueless in September, 2016 hence word "deceased" be mentioned against her name. Against the applications, a counter affidavit has been filed by Raju, who had moved application for abatement.
4. In the counter affidavit filed by Raju, the proposed respondent no.2/1 it has been contended that;
"In reply it is however, submitted that Smt. Anita had died issueless and her property has been inherited by her legal heir Devar Raju and also Smt. Anita has executed a registered sale deed dated 02.06.1992 in favour of Raju also, thus Raju is the legal heir of deceased Smt. Anita both by inheritance & transfer".
5. In view of allegations of alleged execution of registered sale deed dated 2.6.1992 by Smt. Anita and in view of undisputed fact that she died issueless, the proposed respondent Raju may not claim himself to be her heir or legal representative by succession or inheritance.?
6. There is sufficient ground for allowing above application for amendment as the the amendment sought by appellant is formal in nature and is liable to be allowed. Amendment application is allowed accordingly. Let amendment be incorporated in memo of appeal within seven days.
7. It was held by the court in the case of Ram Prasad Vs. State Bank of Bikaner, 1972 AIR(All) 456 that:-
"Where there are several legal representatives, it is sufficient if at least one of them is impleaded under Order XXII Rule 4 C.P.C. If a bonafide application within time for substitution of some of heirs only, is sufficient to keep suit alive, there is no reason why the same principle should not hold good in a ease where some of the heirs are already on record.
The prayer for setting aside abatement is implicit in prayer for substitution"
8. In the case of 'Reoti Prasad Vs. Hoti Lal, 1964 AIR(All) 233', a Division Bench of this Court held that:-
"No question of abatement will arise if one of several legal representatives of a deceased person representing a part of estate, is brought on record".
9. Undisputedly, one of the legal representatives of respondent no.2, respondent no.3 his wife who is already on record, the appeal does not stand abated. The application for substitution of another legal representative of respondent no.2, Raju the son has been moved after the prescribed period of limitation with an application for condonation of delay moved with the averments that appellant had no knowledge of death of respondent no.2 and learned counsel for respondent did not obey his duly cast under provisions of Order XXII Rule 10(A) C.P.C. and did not intimate the Court about his death within stipulated period of three months, rather informed after considerable delay through abatement application.
10. The delay in moving substitution application does not appear deliberate and is duly explained to the satisf
