JUDGMENT

Brijesh Kumar, Member - This is a second appeal preferred against the order of the Additional Commissioner (Administration), Varanasi Division, Varanasi, passed in an appeal No. 185 of 1983, Raja Ram v. Uma and others.

2. Briefly stated, the facts of the case are that Raja Ram filed a suit under Section 229-B/176 of the U.P. Zamindari Abolition and Land Reforms Act in the court of the Additional Collector, Varanasi. During the course of the trial, the respondent Makhai died and no steps for substitution of her heirs were taken. The trial court abated the suit despite request to the court to enquire about the heirs of the deceased without affording any reasonable opportunity to file the substitution application. According to the appellant, the defendant Maluk who had died was substituted in revision before the Additional Commissioner and notices were issued to the heirs of the deceased Maluk. The learned Additional Commissioner dismissed the appeal holding that no irregularity was committed by the trial court.

3. I have heard the learned counsel for the parties and have also perused the record. The learned counsel for the appellant has argued that there are several rulings on the point that lenient view should be decided on merits so that the ends of justice is not defeated. He has placed reliance on AIR 1983 S.C. 355 and AIR 1987 S.C. 1354. The learned counsel for the respondent has argued that the parties belong to the same village and, therefore the plaintiffs were in a position to know the heirs of the deceased.

4. It appears from a perusal of the record that the defendant respondent Makhai died on April 24, 1982 and the defendant-respondent Maluk died on September 3, 1980. No steps were taken to substitute the heirs of the deceased persons in time. The trial court heard the parties on this point on February 2, 1983 and passed the following orders:

"Heard the arguments of the learned counsels for both the parties. According to death certificate filed by the defendant it is clear that defendant No. 5 Smt. Makhai died on April 24, 1982 and defendant No. 3 Malook died on September 3, 1980. Relief has been claimed against both these defendants and both these defendants had filed restoration application on July 12, 1979. The suit has already abated and the prescribed period for setting aside the abatement has also expired. The entire suit is abated. The file be consigned."

5. On March 2, 1983, the plaintiff-appellant moved an application before the trial court with the prayer to condone the delay and set aside the order of abatement and allow the plaintiff to substitute the heirs of the deceased. The trial court rejected this application on March 2, 1983. The appellant had contested through the application filed in the trial court on March 2, 1983 that he came to know of the death of the defendant Makhai and Maluk on Jan. 22, 1983 Maluk was substituted in a revision but due to change of the counsel no steps were taken. On January 22, 1983 the plaintiff's counsel directed him to find out heirs of the deceased, after due exercise of diligence he found out the heirs of the deceased Makhai on February 1, 1983, being pretty old the plaintiff could not reach the chamber of his counsel on February 2, 1983 and went busy directly to the court, that his counsel was busy in some other case and could not move application for substitution on February 2, 1983. The appellant supported his contention by means of an affidavit filed in the court on February 10, 1983. The trial court rejected the application of the plaintiff appellant on March 2, 1983.

6. The order of the trial court dated March 2, 1983 shows that it did not care to look into the reasons assigned by the applicant however merited these might have been. He has rejected the application without assigning any reason. Though it is true that no steps were taken in time to substitute the heirs of the deceased persons, it was the duty of the court to see whether there was any wilfu