# Plaintiff/ v. Smt. Krishna Devi and others

- **Citation:** (2012) 2 ILRA 553
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-03
- **Bench:** Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/plaintiff-v-smt-krishna-devi-and-others-42301
- **Pages:** 4

## Headnote

Code of Civil Procedure-Order XXII, Rule
10 A-Abatement-Respondents No. 1 died
during
pendency
of
1st
AppealDefendant by no point of time either
before court below or before this Hon'ble
Court
given
information-legal
hair
already on record-liberal view should be
taken-substitution allowed.

Held: Para 9

It appears that during the pendency of
1st suit, Munni Lal died and his daughter
Smt. Krishna Devi and son Sri Bhagwati
Prasad were substituted. In the appeal
also, they were made party. On the facts
and circumstances, the Court is of the
view that if respondent no. 1 died in the
year 2004, the pleader of respondent no.
1 should have informed the Court about
her death but it is not the case of any
554 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
party that the pleader has informed
about the death of respondent no. 1. In
the
circumstances,
there
was
no
occasion with the appellants to know
about the death of respondent no. 1 and
to move the substitution application.
During the pendency of the present
appeal, when the appellants came to
know through counsel of respondents
that respondent no. 1 has died, steps
have been taken and the substitution
application has been filed. The Court is of
the view that at the stage of second
appeal also, the heirs of the party who
died during the pendency of suit or
appeal can be made as party and their
names can also be substituted. It is
settled
law
that
in
the
cases
of
substitution and in setting aside the
abatement, a liberal view should be
taken to avoid the defeat of justice.
Case law discussed:
AIR 1996 SC 1984; J.T. 2009 (3) SC 196

## Text

2 All] Hari Lal Chaurasia (Dead) and others V. Smt. Krishna Devi and others
553
Tablewares (P) Ltd., Firozabad 2007 (3)
AWC 3036 a division bench of this Court in
similar fact situation has observed that when
application under Rule 4 Order XXXIX
CPC has already been moved by the
defendant-appellant in the Court below, two
simultaneous
proceedings,
i.e.
(i)
application and (ii) appeal cannot be
allowed
to
go
on.
Application
for
discharge/set aside/variation will be heard
first. The Apex Court has also highlighted
this legal position in para-22 of the report of
A. Venkatasubbiah Naidu's case (supra).

10. The result of the foregoing
discussion is that no interference in the
impugned order is required by this Court in
the instant appeal, which is also not
maintainable, as there was no inaction by
the
Judicial
Officer
in
expeditiously
hearing/disposing of the application for ad
interim injunction. We were informed that
the trial Court had fixed 7.5.2012 for
hearing/disposal of ad interim injunction
application in the case, we hope that by now
the said application should have been heard
and decided. However, if it has not been
done, we direct the trial Court to positively
dispose of the application within three
weeks from receipt of this order. In this
event, we direct the appellant to file the
certified copy of this order before the trial
Court within three days from today. With
the above observation, the appeal is
dismissed.

11. Before parting with the case, we
would like to remind the Judicial Officers of
the State to sensitize themselves in
following the mandate of provisions of
Order XXXIX Rule 3 and 3-A CPC in letter
and spirit whenever they intend to pass
exparte ad interim injunction order without
giving notice to the defendant. Let a copy of
the order be placed before Hon'ble Chief
Justice by the Registrar General for
circulating it among all the Judicial Officers
for future guidance.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.05.2012

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Substitution Application N0.
262104 of 2010
IN
Second Appeal N0. 1162 of 2006

Hari Lal Chaurasia (Dead) and others

 ...Plaintiff/Appellants
Versus
Smt. Krishna Devi and others

 ...Defendants/Respondents.

Counsel for the Appellants:
Sri A.K. Srivastava
Sri Sumit Srivastava

Counsel for the Respondents:
Smt. Kamla Mishra

Code of Civil Procedure-Order XXII, Rule
10 A-Abatement-Respondents No. 1 died
during
pendency
of
1st
AppealDefendant by no point of time either
before court below or before this Hon'ble
Court
given
information-legal
hair
already on record-liberal view should be
taken-substitution allowed.

Held: Para 9

It appears that during the pendency of
1st suit, Munni Lal died and his daughter
Smt. Krishna Devi and son Sri Bhagwati
Prasad were substituted. In the appeal
also, they were made party. On the facts
and circumstances, the Court is of the
view that if respondent no. 1 died in the
year 2004, the pleader of respondent no.
1 should have informed the Court about
her death but it is not the case of any
554 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
party that the pleader has informed
about the death of respondent no. 1. In
the
circumstances,
there
was
no
occasion with the appellants to know
about the death of respondent no. 1 and
to move the substitution application.
During the pendency of the present
appeal, when the appellants came to
know through counsel of respondents
that respondent no. 1 has died, steps
have been taken and the substitution
application has been filed. The Court is of
the view that at the stage of second
appeal also, the heirs of the party who
died during the pendency of suit or
appeal can be made as party and their
names can also be substituted. It is
settled
law
that
in
the
cases
of
substitution and in setting aside the
abatement, a liberal view should be
taken to avoid the defeat of justice.
Case law discussed:
AIR 1996 SC 1984; J.T. 2009 (3) SC 196

(Delivered by Hon'ble Rajes Kumar, J.)

1. It appears that respondent no. 1 died
on 10.4.2004 during the pendency of the 1st
appeal. Since no substitution application
was filed and dead person was made party
an application for abatement of the appeal
against the legal heirs of respondent no. 1
has been filed. Later on, appellants filed the
substitution application on 3.9.2010 on
which the Court has issued notices to the
proposed legal representatives of the
deceased on 18.11.2011. The notices were
sent by ordinary post as well as by
registered post and an application for setting
aside the abatement application has also
been filed on 7.4.2011. In paragraph-3 of
the substitution application, it is stated that
the counsel for the respondents did not
inform the factum of death to the Court as
required under Order 22 Rule 10A of the
Code of Civil Procedure (hereinafter
referred to as "C.P.C.") and as such the
appellants could not know about the death
of respondent no. 1. Learned counsel for the
respondents informed the deponent about
the death of respondent no. 1 on 31.8.2010
and then the deponent enquired about the
legal heirs of respondent no. 1 and then
filed the substitution application. It is stated
that the application is in time, however, if
there is any delay, the same may be
condoned.

2. Counter affidavit has been filed by
the respondents. In paragraph-3 of the
counter affidavit, it is stated that respondent
no. 1 has died on 10.4.2004 and not during
the pendency of the second appeal. She died
before the order has been passed in Civil
Appeal No. 232 of 1998 on 6.9.2006 as
such the present second appeal has been
preferred against the dead person as such
the
substitution
application
is
not
maintainable.

3. Rejoinder affidavit has been filed.
In paragraph-4 of the rejoinder affidavit, the
factum of date of death mentioned in the
counter affidavit has not been disputed. It is
stated that the fact was never brought to the
notice of the lower court nor the counsel for
the respondents ever informed the lower
appellate court about the death of late Smt.
Krishna Devi; the respondent no. 1 who
according to respondent no. 2 died on
10.4.2004 during the pendency of Civil
Appeal No. 232 of 1998. Information, as
required under Order 22 Rule 10A of C.P.C.
was not given and as such the appellants
could not know about the death of
respondent no. 1. Ms. Kamla Misra, learned
counsel for the respondents in the present
second appeal informed the deponent about
the death of respondent no. 1 on 31.8.2010
and then the deponent enquired about the
legal heirs of respondent no. 1 and as such
the present substitution application has been
filed and the same is maintainable.
2 All] Hari Lal Chaurasia (Dead) and others V. Smt. Krishna Devi and others
555

4. Sri A.K. Srivastava, learned counsel
for the appellants submitted that Order 22
Rule 10A of C.P.C. provides that whenever
a pleader appearing for a party to the suit
comes to know of the death of that party, he
shall inform the Court about it, and the
Court shall thereupon give notice of such
death to the other party. In the present case,
the pleader has not informed about the death
of respondent no. 1 before the first appellate
court therefore no steps have been taken to
substitute the heirs. He further submitted
that Smt. Krishna Devi was daughter of late
Munni Lal, who was the defendant in the
suit. Sri Bhagwati Prasad, son of late Munni
Lal, is arrayed as respondent no. 2. He is
still alive. Therefore, having regard to the
nature of the suit and the issue involved, the
abatement of the appeal against the heirs of
respondent no. 1 will have no ultimate
effect. He submitted that a liberal view
should be taken in setting aside the
abatement. Reliance is placed on the
decision of the Apex Court in the case of
State of Madhya Pradesh vs. S.S. Akolkar,
reported in AIR 1996 SC 1984.

5. Sri Arvind Kumar Shukla, learned
counsel for the respondents submitted that
the appeal has been filed against the dead
person, therefore Order 22 Rule 10A of
C.P.C. does not apply in the present case
and the appeal stands abated against the
legal heirs of respondent no. 1. He placed
reliance on the decision of the Apex Court
in the case of T. Gnanavel Vs. T.S.
Kanagaraj and another, reported in J.T.
2009 (3) SC 196.

6. I have considered the rival
submissions.

7. The suit has been filed against
Munni Lal for permanent injunction
restraining him to raise any construction
over the suit property and in the peaceful
possession of the plaintiff.

8. The claim of the plaintiff was that
he had purchased plot no. 794/1 in Mauja
Chakka, Pargana Arail, District Allahabad
measuring Rakba 3 Bishwa 12 Dhoor from
Sri Sangam Lal and Sri Ribai against the
registered sale deed dated 27.10.1959. The
said property has been mutated in the name
of the plaintiff and his name has been
recorded in Plot no. 794/1, 1368 fasli. The
said plot lateron, numbered as 794/2, 1370
fasli in the revenue record. The case of the
defendant is that he was owner of Plot no.
793, which was purchased by him from Sri
Ibrar Hussain, son of Sri Niyat Hussain,
vide registered sale deed dated 20.5.1957
and in the year 1958 over the said plot he
had constructed two rooms. He has not
disputed the ownership and possession of
the plaintiff over plot no. 794/1, new
number 794/2. The Trial court recorded the
finding that the plaintiff failed to prove that
the disputed plot is part of plot no. 794/2.
This finding has been upheld by the
appellate court.

9. It appears that during the pendency
of 1st suit, Munni Lal died and his daughter
Smt. Krishna Devi and son Sri Bhagwati
Prasad were substituted. In the appeal also,
they were made party. On the facts and
circumstances, the Court is of the view that
if respondent no. 1 died in the year 2004,
the pleader of respondent no. 1 should have
informed the Court about her death but it is
not the case of any party that the pleader has
informed about the death of respondent no.
1. In the circumstances, there was no
occasion with the appellants to know about
the death of respondent no. 1 and to move
the substitution application. During the
pendency of the present appeal, when the
appellants came to know through counsel of
556 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
respondents that respondent no. 1 has died,
steps have been taken and the substitution
application has been filed. The Court is of
the view that at the stage of second appeal
also, the heirs of the party who died during
the pendency of suit or appeal can be made
as party and their names can also be
substituted. It is settled law that in the cases
of substitution and in setting aside the
abatement, a liberal view should be taken to
avoid the defeat of justice.

10. In the circumstances, the
substitution application is allowed. The
appellants may substitute the heirs of
respondent no. 1.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.05.2012

BEFORE
THE HON'BLE DEVENDRA KUMAR ARORA, J.

Contempt No. - 1170 of 2012

Dr. Nutan Thakur

 ...Petitioner
Versus
Sri Uday Kumar Verma. Secy., Ministry of
Information and others ...Respondents

Counsel for the Petitioner:
Sri Dr.Nutan Thakur(Inperson)

Contempt of Court Act, 1971-Section 12willful
'disobedience-allegation
that
inspite
of
clear
stay
regarding
publication of news items, electronic
media about movement of Army Troopsthe chairman P.T.I. Made statement
against the validity of direction as not
'correct'-but
inspite
of
repeated
opportunity no material produced by
which it can be presume that after stay
order
any
manner
Press
Council
published any news item relating to
movements of Army Troops-contempt
petition nothing except to came in lime
light-application rejected with cost of Rs.
One Lakh.

Held: Para 38

Thus, petition lacks bona fides and is an
abuse of the process of the Court. It
appears that the petitioner has filed this
petition just to come in limelight and
nothing else, which waisted time of the
Court. The time of Court is precious for
the reason that it is publics time and
must be utilised for adjudicating the
matters which have substance and need
to be decided at the earliest. If the time
of the Court is consumed, that too, a
lion's share, by frivolous and bogus
litigations which is bound to take away
the time which could have been utilised
for needy litigants.

(Delivered by Hon'ble Devendra Kumar
Arora, J.)

The applicant/ petitioner who claims
herself a Journalist, preferred a writ
petition in the nature of Public Interest
Litigation (PIL) (W.P. No. 2685 (MB) of
2012) before this Court seeking a writ of
mandamus directing the respondents viz
Union of India through Principal Secretary,
Prime Minister's Office, New Delhi to
conduct an enquiry (preferably an enquiry
by an Independent Judicial Commission)
with respect to the news article dated
4.4.2012,
published
in
?The
Indian
Express? newspaper (Annexure No. 1 to
the Writ Petition) and another news item
published in ?The Sunday Guardian?
newspaper (Annexure No. 5 to the Writ
Petition) and take legal action against such
persons as per the provisions of law. A
Division Bench of this Court dismissed the
writ petition vide order dated 10.4.2012
with the direction to the Secretary, Home
Affairs, the Secretary, Information &
Broadcasting, Government of India and the