# Aslam Qadeer Revisionist v. Nayyar Jahan Raza & Ors

- **Citation:** (2023) 2 ILRA 27
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-07
- **Case number:** Civil Revision No. 115 of 2022
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aslam-qadeer-revisionist-v-nayyar-jahan-raza-ors-49203
- **Pages:** 5

## Headnote

A. Civil Law -Code of Civil Procedure,
1908-Section 151 - Order 22 - Rule 4Substitution
application
filed
for
substituting the legal heirs of respondent
no.1-application has to be made within
the time prescribed in law for substituting
the heirs of defendant and suit would
abate only when the said application has
not been filed within the time prescribed.
(Para 1 to 27)

The revision is dismissed. (E-6)

## Text

2 All. Aslam Qadeer Vs. Nayyar Jahan Raza & Ors.
27
executant seeks annulment of a deed, he has
to seek a declaration that the deed is invalid,
or non est, or illegal or that it is not binding
on him. The difference between a prayer for
cancellation and declaration in regard to a
deed of transfer/conveyance, can be brought
out by the following illustration relating to A
and B, two brothers. A executes a sale deed in
favour of C. Subsequently A wants to avoid
the sale. A has to sue for cancellation of the
deed. On the other hand, if B, who is not the
executant of the deed, wants to avoid it, he
has to sue for a declaration that the deed
executed by A is invalid/void and non
est/illegal and he is not bound by it. In
essence both may be suing to have the deed
set aside or declared as non-binding. But the
form is different and court fee is also
different. If A, the executant of the deed, seeks
cancellation of the deed, he has to pay ad
valorem court fee on the consideration stated
in the sale deed. If B, who is a non-executant,
is in possession and sues for a declaration
that the deed is null or void and does not bind
him or his share, he has to merely pay a fixed
court fee of Rs. 19.50 under Article 17(iii) of
the Second Schedule of the Act. But if B, a
non-executant, is not in possession, and he
seeks not only a declaration that the sale
deed is invalid, but also the consequential
relief of possession, he has to pay an ad
valorem court fee as provided under Section
7(iv)(c) of the Act.

8.Section 7(iv)(c) provides that in
suits
for
a
declaratory
decree
with
consequential relief, the court fee shall be
computed according to the amount at which
the relief sought is valued in the plaint. The
proviso thereto makes it clear that where the
suit for declaratory decree with consequential
relief is with reference to any property, such
valuation shall not be less than the value of
the property calculated in the manner
provided for by clause (v) of Section 7."

37. The Question-C as such stands
answered accordingly.

38. In view of aforesaid discussion,
Questions No.A and B are answered in
favour of revisionist. Resultantly, the
revision succeeds and is allowed. Parties to
bear their own costs.
----------
(2023) 2 ILRA 27
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.12.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Civil Revision No. 115 of 2022

Aslam Qadeer ...Revisionist
Versus
Nayyar Jahan Raza & Ors.
 ...Opposite Parties

Counsel for the Revisionist:
Sri Kumar Anish

Counsel for the Opposite Parties:

A. Civil Law -Code of Civil Procedure,
1908-Section 151 - Order 22 - Rule 4Substitution
application
filed
for
substituting the legal heirs of respondent
no.1-application has to be made within
the time prescribed in law for substituting
the heirs of defendant and suit would
abate only when the said application has
not been filed within the time prescribed.
(Para 1 to 27)

The revision is dismissed. (E-6)
(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Kumar Anish, learned
counsel for the revisionist.
28 INDIAN LAW REPORTS ALLAHABAD SERIES

2. The present revision has been filed
by Aslam Qadeer, defendant no.6, in
Original Suit No.1003 of 2015 instituted by
one Fatima Imran seeking a decree of
specific performance of the contract against
respondent nos.1 to 3 (defendant nos.1 to 3
in original suit) with further prayer that
respondent
nos.1
to
3
along
with
respondent nos.4 to 7 (defendant nos.5 to 8
in original suit) be directed to execute the
sale deed.

3. During the pendency of the suit,
Nayyar Jahan Raza (defendant no.1) died
on 30.01.2021. After the death of Nayyar
Jahan Raza, plaintiff/respondent no.8 filed
substitution application 144A1/1 under
Order 22 Rule 4 read with Section 151 of
C.P.C. for substituting the legal heirs of
Late Nayyar Jahan Raza.

4.

During
the
pendency
of
substitution application 144A1/1, Irfan
Khan one of the heirs of the Late Nayyar
Jahan Raza also died on 30.05.2021. After
the
death
of
Ifran
Khan,
plaintiff/respondent
no.8
filed
an
amendment application 146Ga seeking
amendment in the substitution application
144A1/1 which was allowed by the trial
court vide order dated 20.04.2022.

5. The order dated 20.04.2022 was
challenged by the revisionist through Civil
Revision No.65 of 2022 which was allowed
by this Court vide judgement dated
27.06.2022
with
liberty
to
the
plaintiff/respondent no.8 to file a separate
substitution application to substitute the
heirs of Irfan Khan.

6. Thereafter, plaintiff/respondent
no.8 again filed amendment application
175A, to which revisionist filed an
objection stating therein that the said
application
is
not
maintainable
as
plaintiff/respondent no.8 was supposed to
file
separate
substitution
application
because of the order of this Court dated
27.06.2022.

7. On the objection of the revisionist,
application 175A was rejected by the trial
court vide order dated 02.09.2022 with
liberty to the plaintiff/respondent no.8 to
file a fresh substitution application under
Order 22 Rule 4 of C.P.C.

8. The plaintiff/respondent no.8 after
the order of the trial court dated 02.09.2022
filed fresh substitution application 179A
under Order 22 Rule 4 of C.P.C. for
substituting the heirs of Late Irfan Khan.

9. The application 179A was objected
to by the revisionist by filing an objection
that application 179A under Order 22 Rule
4 of C.P.C. was not maintainable and is
liable to be rejected as no application
condoning
the
delay
in
filing
the
substitution application 179A has been
filed. It is also stated that even otherwise
this Court vide order dated 27.06.2022
directed the plaintiff/respondent no.8 to file
a separate substitution application for
substituting the heirs of late Irfan Khan
within six weeks, and since six weeks
period
has
expired
and
no
delay
condonation application has been filed,
therefore, the said application was not
maintainable and thus, the suit is abated
against late Irfan Khan.

10. The trial court vide order dated
3.10.2022 allowed both applications i.e.
application 179A and application 144A. So
far as application 144A1/1 regarding the
substitution of heirs of Late Nayyar Jahan
Raza is concerned, the revisionist has no
grievance. In the present revision, the
2 All. Aslam Qadeer Vs. Nayyar Jahan Raza & Ors.
29
revisionist has assailed the order dated
03.10.2022
to
the
extent
it
allows
application 179A of the plaintiff/respondent
no.8 to substitute the heirs of Late Irfan
Khan.

11. The submission has been
advanced by the learned counsel for the
revisionist only with respect to the order of
the trial court allowing the application
179A. It is contended by the learned
counsel for the revisionist that the trial
court has committed jurisdictional error in
allowing the said application inasmuch as
the application 179A was not maintainable
as the limitation for filing the substitution
application to implead the heirs of Late
Irfan Khan has expired and no application
for condoning the delay has been filed with
the
substitution
application.
Learned
counsel for the revisionist has further urged
that as the application to implead the heirs
of the Late Irfan Khan has not been filed
within time, therefore, on the expiry of the
period of limitation for filing a substitution
application, the suit against Irfan Khan is
abated and thus, order of the trial court so
far as it allows the application 179A is
liable to be set aside.

12. I have considered the submissions
advanced by the learned counsel for the
revisionist and perused the record.

13. The fact as emerges from the
record are that Original Suit No.1003 of
2015
has
been
instituted
by
the
plaintiff/respondent no.8 for a decree of
specific performance of the contract against
revisionist and respondent nos.1 to 7
(defendant nos.1 to 5 & 7 to 8). During the
pendency of the aforesaid suit, Nayyar
Jahan Raza (defendant no.1) had died on
30.01.2021, and plaintiff/respondent no.8
filed
an
application
144A1/1
for
substituting the heirs of Late Nayyar Jahan
Raza.

14. Before the said application could
be allowed, Irfan Khan one of the heirs of
the Late Nayyar Jahan Raza died on
30.05.2021. After the death of Irfan Khan,
plaintiff/respondent no.8 filed amendment
application 146A in substitution application
144A1/1 which was allowed by the trial
court vide order dated 20.04.2022. The said
order was set aside by this Court vide
judgement dated 27.06.2022 passed in Civil
Revision No.65 of 2022 with liberty to the
plaintiff/respondent no.8 to file a fresh
substitution application to substitute the
heirs of Late Irfan Khan.

15. After the order dated 27.06.2022
passed by this Court, plaintiff/respondent
no.8 submitted an application 175A for
amendment in the plaint which was again
contested by the revisionist. The trial court
vide order dated 02.09.2022 rejected the
application of the plaintiff/respondent for
amending
the
plaint.
Thereafter,
plaintiff/respondent no.8 filed substitution
application 179A which was allowed by the
trial court vide order dated 03.10.2022.

16. In such factual backdrop, the
question which arises for consideration in
the
present
revision
as
to
whether
plaintiff/respondent no.8 should have filed
a delay condonation application along with
the substitution application for condoning
the
delay
in
filing
the
substitution
application
179A
and
further,
an
application to set aside the abatement
should also have been made by the
plaintiff/respondent no.8 as the suit in
respect of Irfan Khan was abated for not
filing the substitution application within 90
days period from the date of death of Irfan
Khan.
30 INDIAN LAW REPORTS ALLAHABAD SERIES

17. Before proceeding to deal with the
contention advanced by the learned counsel
for the revisionist, it would be apt to
reproduce Order 22 Rule 4 (1) & (3) of
C.P.C relevant in the present dispute:-

"4. Procedure in case of death of
one of several defendants or of sole
defendant- (1) Where one of two or more
defendants dies and the right to sue does
not survive against the surviving defendant
or defendants alone, or a sole defendant or
sole surviving defendant dies and the right
to sue survives, the Court, on an
application made in that behalf, shall cause
the legal representative of the deceased
defendant to be made a party and shall
proceed with the suit.

(2)...

(3) Where within the time limited
by law no application is made under subrule (1), the suit shall abate as against the
deceased defendant"

18. A reading of Order 22 Rule 4 (1)
of C.P.C. suggests that when the defendant
dies and the right to sue survives, the Court
on an application made on that behalf shall
cause the legal representative of the
defendant to be made a party and shall
proceed with the suit. Order 22 Rule 4(3) of
C.P.C. provides that where within the time
limited by law no application is made under
sub-rule (1), the suit shall abate as against
the deceased defendant.

19. Now, in considering the said
issue, the first question that crops up is
when a person is said to be a defendant in a
suit and when the limitation for filing the
substitution application shall begin.

20. The word 'defendant' in Advanced
Law Lexicon 6th Edition Volume 2 is
defined as under:-

"(i). The party sued in an action.
One who is sued (or prosecuted). The title
"defendant" is more generally applied to a
party in civil than in a criminal suit or
proceeding.

(ii). The party against whom a
charge or complaint is brought."

21. The word 'defendant' in Black's
Law Dictionary Ninth Edition is defined as
under:-

"A person sued in a civil
proceeding or accused in a criminal
proceeding."

22.
 Thus,
from
the
aforesaid
dictionary meaning of the word 'defendant',
it can be culled out that a defendant is a
person who has been impleaded in a suit
and against whom the plaintiff has a cause
of action and based on the said cause of
action, the plaintiff is entitled to relief as
claimed in the suit against said person. In
other words, the 'defendant' means a person
against whom any claim or charge is
brought that he wishes to refute. Thus, a
person would become a 'defendant' in any
suit or proceeding only when he has been
impleaded and has been called upon to
refute the pleading of the suit or proceeding
against him.

23. Now, to ascertain when Late Irfan
Khan became the defendant in the suit and
after his death, when provision of Order 22
Rule 4 of C.P.C. is attracted to enable the
heirs of the Late Irfan Khan to file a
substitution application, the facts of the
case needs to be examined.

24. In the instant case, it is not in
dispute that application 144A1/1 filed by
the plaintiff/respondent no.8 was not
decided on the date of death of Irfan Khan
2 All. Lokesh & Ors. Vs. State of U.P.
31
who had died during the pendency of the
substitution application. In the meantime,
plaintiff/respondent
no.8
filed
two
misconceived applications which were
rejected by the court. Thereafter, the
plaintiff/respondent no.8 filed substitution
application 179A.

25. The substitution application
144A1/1 was not allowed, when the
application 179A was filed, therefore, the
suit could not have abated against Irfan
Khan as he did not become the defendant in
the suit for want of any order on the
substitution application 144A1/1. Late Irfan
Khan shall become defendant only after the
substitution
application
144A1/1
was
allowed by the trial court and would
become eligible to deny or refute the claim
of the plaintiff/respondent no.8 after his
substitution application was allowed and he
has been substituted. Thus, he will become
the defendant for the purpose of Order 22
Rule 4 of C.P.C. on the date his substitution
application is allowed by the trial court.
Given the language used under Order 22
Rule 4 (1) (3) of C.P.C., the application has
to be made within the time prescribed in
law for substituting the heirs of the
defendant and the suit would abate only
when the said application has not been filed
within the time prescribed.

26. In the instant case, the application
to substitute Irfan Khan was pending and
was not allowed and till it was allowed,
there was no question of substituting the
heirs of the Late Irfan Khan. Thus, the
limitation to substitute the heirs of the Late
Irfan Khan would start running from
03.10.2022 when application 144A1/1
regarding the substitution of heirs of the
Late Nayyar Jahan Raza is allowed by the
trial court. It is not in dispute that on the
date the substitution application 144A for
substituting the heirs of Late Nayyar Jahan
Raza was allowed, the application 179A to
substitute the heirs of Late Irfan Khan was
filed and pending before the court. Thus,
this Court believes that there was no delay
in filing the substitution application 179A
to substitute the heirs of Irfan Khan, nor the
suit could have abated against Irfan Khan
since the substitution application 144A1/1
was not decided by the court below.

27. Thus, for the reasons given above,
the civil revision lacks merit and is
accordingly, dismissed with no order as to
costs.
----------
(2023) 2 ILRA 31
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.01.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 1371 of 2015

Lokesh & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Araf Khan, Sanakshi Arora, Sri Lihazur
R. Khan, Sri Rajesh Pathik, Sri Gaurav
Kakkar, Sri Sanjay Kumar Dubey.

Counsel for the Respondent:
Govt. Advocate, Sri Satish Solanki

A. Criminal Law - Indian Penal Code, 1860
- Section 302 - Evidence Act, 1872 -
Section 32 - Dying declaration - It is
necessary for the prosecution to establish
that the dying declaration was recorded
when the victim was in the fit state of
mind - merely certifying that the victim
was
conscious
while
recording
the