# Smt. Ramlata Singh v. Arun Kumar Dubey & Anr

- **Citation:** (2021) 8 ILRA 15
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-06
- **Case number:** Second Appeal No. 1280 of 2018
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-ramlata-singh-v-arun-kumar-dubey-anr-47166
- **Pages:** 8

## Headnote

A. Civil Law - Code of Civil Procedure,
1908
-
Section
100
-
UP
Land
16 INDIAN LAW REPORTS ALLAHABAD SERIES
Development and Mortgage Act, 1963 -
Section 20 - Suit - Specific performance
of contract - Refusal or grant thereof -
Exercise
of
power
by
the
Court
-
Assigning of the reason, requirement
thereof - Held, the discretion to grant or
refuse specific performance cannot be
exercised
arbitrarily
-
A
fortiori,
howsoever reasonable a premise on which
the thought process of a Court is found to
reach a particular conclusion, a laconic or
cryptic conclusion, bereft of reasons, is
inherently arbitrary - Requirement of
assigning reasons is more onerous in the
case of judicial verdicts, rendered by
Courts properly so called, or Tribunals,
that have trappings of Courts - Despite
the plaintiff succeeding to prove his case
of
a
breach
of
contract,
specific
performance may be refused, but the
discretion
has
not
to
be
exercised
arbitrarily, it has to be exercised in
accordance with Section 20 of the Act of

## Text

8 All. Smt. Ramlata Singh Vs. Arun Kumar Dubey & Anr.
15

"Tarawati Devi had purchased
total two acres and fifteen decimals of land.
I cannot tell the number of sale deeds. I
don't have the knowledge about the
registration of her name on the said land.
Till the time of her death, the land
purchased by her remained with Tarawati
Devi. The land in dispute is two acre and
fifteen decimals in area. The land in dispute
in the present suit is the land purchased by
Tarawati Devi."

The High Court does not seem to
have examined the above admission of the
first respondent-plaintiff nor considered the
oral evidence adduced by the second
respondent-defendant.
Being
the
first
appellate court, the final court on facts, the
High Court should have considered the
evidence adduced by the first respondentplaintiff as well as the evidence adduced by
the second respondent-defendant. But the
High Court seems to have considered only
the
evidence
adduced
by
the
first
respondent-plaintiff and not the evidence
adduced
by
the
second
respondentdefendant
and
the
alleged
inherent
contradictions in the statement of first
respondent-plaintiff."

13. Sri Anay Kumar Srivastava,
learned
counsel
for
the
caveator-
respondent, does not dispute the stand
taken by the learned counsel for the
appellants.

14. In all fairness, learned counsel for
the caveator has submitted that the matter
may be remitted to the first appellate court
for fresh consideration.

15. From an independent perusal of
the judgment of the first appellate court I
am of the considered opinion that the order
of the first appellate court dated 21.11.2020
cannot stand, being contrary to the law.

16. The answer to the substantial
question of law is as follows:

"The
judgment
of
the
first
appellate Court is not only inconsistent
with the provisions of Order 41 Rule 31
C.P.C. but has led to fatal miscarriage of
justice and is unsustainable in the law."

17.

Accordingly,
the
impugned
judgment, order and decree dated 21.11.2020
passed by the Additional District & Sessions
Judge/ Special Judge (SC/ST Act), Baghpat is
set aside. The matter is remitted to the first
appellate Court for a fresh decision in
accordance with law. The first appellate court
shall decide the appeal expeditiously, fixing
short dates, without granting unnecessary
adjournments.

18. The appeal is allowed in the above
terms.
----------
(2021)08ILR A15
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 1280 of 2018

Smt. Ramlata Singh ...Appellant
Versus
Arun Kumar Dubey & Anr. ...Respondents

Counsel for the Appellant:
Sri Jitendra Kumar, Sri Ashu Verma

Counsel for the Respondents:
Sri Ashish Bajpayee, Sri Adya Prasad
Tewari, Sri Sheo Shankar Tripathi

A. Civil Law - Code of Civil Procedure,
1908
-
Section
100
-
UP
Land
16 INDIAN LAW REPORTS ALLAHABAD SERIES
Development and Mortgage Act, 1963 -
Section 20 - Suit - Specific performance
of contract - Refusal or grant thereof -
Exercise
of
power
by
the
Court
-
Assigning of the reason, requirement
thereof - Held, the discretion to grant or
refuse specific performance cannot be
exercised
arbitrarily
-
A
fortiori,
howsoever reasonable a premise on which
the thought process of a Court is found to
reach a particular conclusion, a laconic or
cryptic conclusion, bereft of reasons, is
inherently arbitrary - Requirement of
assigning reasons is more onerous in the
case of judicial verdicts, rendered by
Courts properly so called, or Tribunals,
that have trappings of Courts - Despite
the plaintiff succeeding to prove his case
of
a
breach
of
contract,
specific
performance may be refused, but the
discretion
has
not
to
be
exercised
arbitrarily, it has to be exercised in
accordance with Section 20 of the Act of
1963. (Para 16 and 20)
Appeal allowed in part. (E-1)
Cases relied on :-
1. Tigvijay Singh Vs Ram Autar & anr., 2012 (6)
AWC 5649
(Delivered by Hon'ble J.J. Munir, J.)

1. The moot question involved in this
second
appeal
is
:
Can
specific
performance
of
contract
relating
to
immovable property be arbitrarily refused
by the Court?

2. The late Balji Dubey, father of the
defendant-respondents,
executed
a
registered agreement to sell, covenanting to
transfer by sale land comprising Arazi No.
204 (M), admeasuring 14 biswa and 15
dhur, out of the total area of the plot
admeasuring 3 bigha 5 biswa 15 dhur,
situate at Mauza Gothaura, Pargana Bhuili,
Tehsil Chunar, District Mirzapur, in favour
of the plaintiff for a total sale consideration
of Rs.30,000/-. An earnest of Rs.15,000/-
was paid at the time of contract. The land
contracted to be sold as aforesaid, shall
hereinafter be referred to as "the suit
property". The contract was executed and
registered
on
29.06.1994.
It
was
covenanted in the suit agreement that the
plaintiff would be entitled to call upon the
vendor, whenever she wanted the sale deed
to be executed in her favour, in terms of the
agreement. The plaintiff appears to have
called upon Balji a number of times over to
execute the sale deed, but he did not
discharge his obligations. Pending the
unfulfilled
promise
under
the
suit
agreement, Balji Dubey passed away,
leaving behind him, his widow and his
sons, Arun Kumar Dubey and Sanjay
Kumar Dubey. The plaintiff got a notice
served upon the heirs of the late Balji
Dubey on 31.12.1996, calling them to come
forward and execute a sale deed in terms of
the suit agreement. Since that was not done,
she instituted Original Suit no.10 of 1997
before the Court of the Civil Judge (Sr.
Div.), Mirzapur, praying that a decree for
specific performance in terms of the suit
agreement be passed in her favour and
against the defendant-respondents. In the
alternate, relief of refund of the earnest of
Rs.15,000/- together with interest at the
rate of 2% per month was claimed.

3. The defendant-respondents entered
appearance and filed a joint written
statement, traversing the plaint allegation.
They took the defence that Balji had never
executed the suit agreement. The agreement
did not bear the signatures or thumb marks
of the defendants. The plaintiff had set up
an imposter to execute the agreement. Their
predecessor-in-title, Balji had not received
a penny towards the earnest, mentioned in
the suit agreement. The plaintiff was
neither ready nor willing to get a sale deed
8 All. Smt. Ramlata Singh Vs. Arun Kumar Dubey & Anr.
17
executed in terms of the agreement. The
suit is barred by Section 16 of the Specific
Relief Act, 1963 (for short "the Act of
1963") as well as the provisions of the U.P.
Land Development and Mortgage Act. The
plaintiff never served upon the defendants
any notice, and, therefore, all allegations
regarding service of the notice are baseless.
The defendants asked the suit to be
dismissed with costs.

4. The Trial Court, upon the pleadings
of parties, struck the following issues
(translated
into
English
from
Hindi
vernacular):

(i) Whether the defendants' father,
Balji Dubey, had executed the registered
agreement to sell dated 29.06.1994 in
favour of the plaintiff, covenanting to sell
the property in dispute for a sum of
Rs.30,000/- and received an earnest of
Rs.15,000/- before the Registrar?

(ii) Whether the plaintiff was ever
ready and willing to get a sale deed
executed and is still ready and willing?

(iii) Whether the suit is barred by
Section 20 of the U.P. Land Development
and Mortgage Act?

(iv) Relief?

5. The parties went to trial, leading
both documentary and oral evidence. The
learned Civil Judge (Senior Division), who
tried the suit, held that the suit agreement
was forged and did not bear Balji Dubey's
signatures. It was also held that the suit
agreement, being not proved, the question
of readiness and willingness was also to be
answered against the plaintiff. Issue no.3
was answered in the affirmative in favour
of the defendant, holding the suit to be
barred by Section 20 of the U.P. Land
Development
and
Mortgage
Act.
In
consequence of the findings recorded on
the
various
issues,
the
Trial
Court
dismissed the plaintiff's suit with costs by
its judgment and decree dated 20.09.2003.
The plaintiff-appellant appealed the decree
to the District Judge, Mirzapur vide Civil
Appeal no.13 of 2013.

6. The appeal aforesaid was assigned
to the Additional District Judge/ Fast Track
Court, Mirzapur, before whom, it came up
for determination on 04.09.2018. The lower
Appellate Court framed two points of
determination in accordance with the
provisions of Order XLI Rule 31 CPC.
These points are (translated into English
from Hindi vernacular):

(i) Whether the signatures of Balji
Dubey
are
forged
and
whether
the
agreement was not executed by him in
favour of the plaintiff?

(ii)
Whether
failure
of
the
plaintiff, Ramlata Singh to appear in Court,
leads to the conclusion that the agreement
is not proved and whether an adverse
inference on that account is to be raised
against the plaintiff?

7. The lower Appellate Court, after a
meticulous examination of evidence on
record, held that the suit agreement was
fully proved by the evidence on record. It
was also held that the notice of demand to
execute a sale deed was duly served and it
was proved that the plaintiff had been ready
and willing throughout to get the sale deed
executed in her favour in terms of the suit
agreement. It was further held that the suit
was not at all barred under Section 20 of
the U.P. Land Development and Mortgage
Act.

8. After returning all findings in
favour of the plaintiff-appellant, the lower
Appellate Court made a short shrift of the
18 INDIAN LAW REPORTS ALLAHABAD SERIES
matter to say that though the plaintiff had
always been ready and willing to get the
sale deed executed, but since she had asked
for the alternative relief of refund of
earnest, she was entitled to that relief alone.
The appeal was, therefore, allowed in the
terms that the decree of the Trial Court was
set aside, but reversing it, a decree of
specific performance was not passed;
instead a decree for refund of the earnest in
the sum of Rs.15,000/- together with 6%
interest was passed.

9. Aggrieved, the present appeal has
been instituted.

10. This appeal was admitted to
hearing on 17.12.2018 on the following
substantial questions of law:

1. Whether, the Court can refuse
the main relief of specific performance of
contract in suit in spite of finding that the
plaintiff had succeeded to prove his/her
case?

2. Whether, the Court can refuse
or avoid the main relief in the suit for
specific performance of contract without
assigning any reason?

3. Whether, the Court can grant
alternative relief to refund the advance
money along with interest in the suit for
specific performance of contract without
assigning any reason?

11. Heard Mr. Jitendra Kumar,
learned Counsel for the plaintiff-appellant
and Mr. A.P. Tewari, learned Counsel
appearing on behalf of the defendantrespondents.

12. All the three substantial questions
of law are interrelated and almost identical
in content. These are, therefore, being dealt
with and answered together.

13. Mr. Jitendra Kumar, learned
Counsel for the appellant points out that the
Lower Appellate Court had found, for a
fact, that execution of the suit agreement
was duly proved. The readiness of the
plaintiff-appellant
was
throughout
established, which entitled the appellant, in
the opinion of the Lower Appellate Court,
to succeed in her suit. In the submission of
the learned Counsel, the Lower Appellate
Court could not arbitrarily and without
assigning any reason, refuse specific
performance, by granting the alternate
relief of refund of earnest with interest.

14. Mr. Tewari, on the other hand,
submits that under Section 20 of the Act
1963, it is open to the Lower Appellate
Court, which is the last Court of fact, to
exercise its discretion in granting specific
performance. He submits that the Lower
Appellate Court was well within its
jurisdiction to exercise that discretion
against the grant of specific performance
and instead, order refund of earnest with
interest. He emphasizes that the plaintiffappellant had sought the alternate relief of
refund of interest, which empowered the
Appellate Court to accept the alternate
relief, instead of the principal relief of
specific performance.

15. This Court has keenly considered
the submissions of the learned Counsel and
perused the record.

16. It is true that the Court has
discretion to grant specific performance,
where it finds for the plaintiff on all the
facts in issue and those relevant in a suit for
specific performance of contract. But, the
discretion to grant or refuse specific
performance,
cannot
be
arbitrarily
exercised. The foremost index of nonarbitrariness about the order of any Court,
8 All. Smt. Ramlata Singh Vs. Arun Kumar Dubey & Anr.
19
or for that matter, even an Authority, is the
assignment of reasons for the conclusions
reached. A fortiori, howsoever reasonable a
premise on which the thought process of a
Court is found to reach a particular
conclusion, a laconic or cryptic conclusion,
bereft of reasons, is inherently arbitrary.
Unless the reader of the judgment can
know the reasons that weighed with the
author to reach his conclusion, arbitrariness
would vitiate that order. The requirement of
assigning reasons is more onerous in the
case of judicial verdicts, rendered by
Courts properly so called, or Tribunals, that
have trappings of Courts. The power under
Section 20 of the Act of 1963 to exercise
discretion to grant or refuse specific
performance
has
a
number
reputed
parameters, on which it is exercised, one
way or the other. This principle, that the
discretion to decree specific performance
cannot
be
arbitrarily
exercised,
is
enumerated in the provisions of Section 20
of the Act of 1963 (as it stood before its
amendment by Act no.18 of 2018). It reads:

"20. Discretion as to decreeing
specific performance.--(1) The jurisdiction
to
decree
specific
performance
is
discretionary, and the court is not bound to
grant such relief merely because it is lawful
to do so; but the discretion of the court is
not arbitrary but sound and reasonable,
guided by judicial principles and capable of
correction by a court of appeal.

(2) The following are cases in
which the court may properly exercise
discretion
not
to
decree
specific
performance--

(a) where the terms of the
contract or the conduct of the parties at the
time of entering into the contract or the
other circumstances under which the
contract was entered into are such that the
contract, though not voidable, gives the
plaintiff an unfair advantage over the
defendant; or

(b) where the performance of the
contract would involve some hardship on
the defendant which he did not foresee,
whereas
its
non-performance
would
involve no such hardship on the plaintiff; or

(c) where the defendant entered
into the contract under circumstances
which though not rendering the contract
voidable, makes it inequitable to enforce
specific performance.

Explanation I.--Mere inadequacy
of consideration, or the mere fact that the
contract is onerous to the defendant or
improvident in its nature, shall not be
deemed to constitute an unfair advantage
within the meaning of clause (a) or
hardship within the meaning of clause (b).

Explanation
II.--The
question
whether the performance of a contract
would involve hardship on the defendant
within the meaning of clause (b) shall,
except in cases where the hardship has
resulted from any act of the plaintiff,
subsequent to the contract, be determined
with reference to the circumstances existing
at the time of the contract.

(3) The court may properly
exercise discretion to decree specific
performance in any case where the plaintiff
has done substantial acts or suffered losses
in consequence of a contract capable of
specific performance.

(4) The court shall not refuse to
any party specific performance of a
contract merely on the ground that the
contract is not enforceable at the instance
of the other party."

17. There could still be a number of
other factors, on the basis of which, the
decision to grant or refuse specific
performance, could turn one way or the
other. This could be the conduct of the party
20 INDIAN LAW REPORTS ALLAHABAD SERIES
asking for specific performance or the one
resisting it. Specific performance, being an
equitable relief, could also be refused on the
ground that the plaintiff had not come to
Court with clean hands and had suppressed
material facts. Likewise, the defendant too
could suffer specific performance, because
breach of contract being fully proved against
him, his conduct prior to commencement of
action and during the course of trial disentitle
him to the discretion of the Court, granting
the alternate relief of refund, instead of
specific performance. There could be cases,
which are there in ample measure, where
phenomenal rise in the price of immovable
property have weighed with the Courts in
substituting the relief of specific performance
by a decree for payment in lump sum of a
much higher compensation to the successful
plaintiff or requiring the plaintiff to enforce
specific performance on payment of a higher
sale
consideration,
rationalized
to
the
contemporary price index. Again, this kind of
an adjustment of compensation to the plaintiff
or enhanced price to the vendee is not to be
ordered, keeping aside relevant factors. These
relevant factors could be, whether the delay is
attributable to the plaintiff or the defendant;
or still more, to none of them, but the judicial
process. Sadly, the Lower Appellate Court,
while exercising the discretion to refuse
specific performance and instead granting the
alternate relief of refund with interest, has not
done the slightest of this meticulous
consideration. At least, not a word has been
said in the judgment, that may lead to the
interference about a valid exercise of this
discretion. It would be imperative here, to
extract the short finding recorded by the
Lower Appellate Court on the issue in hand.
It reads (in Hindi vernacular):

"उपरोक्त वििेचन से स्पष्ट है वि
अपीलावथिनी प्रश्नगत दस्तािेज 32ि जो वि िाद
िा आधार है िो वसद्ध िरने में सफल रही है।
िह प्रश्नगत भूवम पर बैनामा िराने िे वलए
हमेशा तैयार ि रजामन्द रही है, परन्तु प्रवतिादी/
रेस्पान्डेन्ट्स िे द्वारा प्रश्नगत भूवम िा न तो
बैनामा विया गया न ही अपीलावथिनी द्वारा दी
गयी धनरावश िो ही अदा विया गया। जब वि
िावदनी/ अपीलावथिनी िी अपील स्वीिार विये
जाने योग्य है एिं आलोच्य आदेश वदनांवित20.09.2003, वनरस्त विये जाने योग्य है।"

18. In this connection, reference may
be made to the decision of a Division
Bench of this Court in Tigvijay Singh vs.
Ram Autar and another, 2012 (6) AWC
5649. In Tigvijay Singh, it has been held:

"It is an acknowledged legal
proposition that a plaintiff can claim more
than one relief on the same cause of action.
He must claim all; he will otherwise entitle
to bring a new suit for omitted relief, unless
the omission is for the first time was with
leave of the Court. The claim of alternative
relief of refund of earnest money along
with interest etc. is a usual relief claimed in
such suits. The defendant cannot compel a
plaintiff to be satisfied by the alternative
relief, relief for specific performance of
contract to sell instead. It will be travesty of
justice if relief for contract to sell is denied
on this ground. It is true that discretion has
been given to the Court under Section 20 of
the Specific Relief Act but the specific
performance relief should not be refused
arbitrarily.
The
discretion
should
be
exercised on sound principles of law
capable of correction by an appellate court,
as laid down by the Apex Court in the case
of Lourdu Mari David (supra). It is settled
law that the party who seeks to avail of the
equitable jurisdiction of a Court and
specific performance being equitable relief,
must come to the Court with clean hands.
8 All. Smt. Ramlata Singh Vs. Arun Kumar Dubey & Anr.
21
Here is a case where it was neither found
by the trial court nor any material was
placed before us by the defendant to show
that the plaintiffs has not come to the court
with clean hands or they have based their
claim on some falsehood. As a matter of
fact, the position is otherwise. The
defendant has not come to the court with
clean hands and has come forward with
untrue facts. Refusal of decree for specific
performance of contract to sell in such
situation would not promote honesty in
society."

19. The case in hand and what
appears from the finding recorded by the
Lower Appellate Court, shows utter breach
in observance of the statutory obligation
cast upon the Court under Section 20 of the
Act of 1963, as it stood prior to its
amendment.

20. In view of what has been said
hereinabove, substantial no. 1 is answered
in the affirmative, in terms that despite the
plaintiff succeeding to prove his case of a
breach of contract, specific performance
may be refused, but the discretion has not
to be exercised arbitrarily; it has to be
exercised in accordance with Section 20 of
the Act of 1963 and other relevant factors
reputed
under
the
law.
Substantial
question of law no.2 is answered in the
negative, holding that the Court cannot
refuse the relief of specific performance of
contract without assigning good and cogent
reasons there for. Substantial question no.
3 is also answered in the negative in terms
that the alternate relief of refund of earnest,
along with interest in a suit for specific
performance, cannot be opted by the Court
without assigning good and cogent reasons.

21. In the circumstances, there is no
alternative but to allow the appeal in part
and set aside the impugned judgment and
decree passed by the Lower Appellate
Court to the extent that it refuses specific
performance. The relevant namesake of a
finding would also be treated to be
nullified. The other findings recorded by
the Lower Appellate Court regarding
establishment of the plaintiff's case about
the validity of the suit agreement, the
readiness and willingness and the suit not
being barred under Section 20 of the U.P.
Land Development and Mortgage Act, are
all affirmed. These shall not be reopened. It
must also be remarked that there is no
cross-appeal preferred by the defendants,
questioning the decree for refund with
interest or the findings on which it is based.
There is, therefore, no occasion for this
Court to upset those findings. It is clarified
that this Court has not expressed opinion,
either way, about the way the Lower
Appellate Court, after considering evidence
and hearing parties, may exercise its
discretion to grant specific performance or
opt for the alternative relief. The Lower
Appellate Court shall be free to exercise
that discretion in accordance with law and
after considering the evidence on record.

22. In the result, this appeal succeeds
and is allowed in part. The impugned
decree passed by the Lower Appellate
Court shall stand set aside to the extent
alone that it directs refund with interest,
instead of specific performance. The appeal
shall stand restored to the file of the Lower
Appellate Court for determination of the
question about the grant of relief of specific
performance afresh, after hearing parties
and bearing in mind the guidance in this
judgment. Costs easy.

23. Let the lower courts records be
sent down to the lower Appellate Court at
once. Both parties shall appear before the
22 INDIAN LAW REPORTS ALLAHABAD SERIES
lower Appellate Court on 6th September,
2021.

24. Let this order be communicated to
the District Judge, Kaushambi by the
Registrar (Compliance).
----------
(2021)08ILR A22
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.08.2021

BEFORE

THE HON'BLE MANISH MATHUR, J.

F.A.F.O. No. 903 of 2012

Smt. Ritu Jutshi & Ors. ...Appellants
Versus
Smt. Rukmini Kaul ...Respondent

Counsel for the Appellants:
Rajeiu Kumar Tripathi

Counsel for the Respondent:
Aftab Ahmad, Akhil Kumar, Malay Shukla,
Mohammad Aslam Khan, Mohd. Aslam
Khan, Mohd. Shafiq, Mohiuddin Khan,
Shaquiel Ahmad

(A) Civil Law - Code of Civil Procedure
,1908 - Section 104 read with Order 43,
Rule 1 (k) read with Section 141 - The
Limitation Act,1963 - Section 14 ejusdem
generis - no appeal is provided against an
Order under Order XXII Rule 3 and 5 of
the Code either under Section 104 or
Order 43 Rule 1 of the Code - once the suit
has abated or is dismissed, any person
such as the appellants claiming to be a
legal representative
of
the
deceased
would be required to apply for setting
aside the abatement or dismissal of the
suit under Order XXII Rule 9 (2) of the
Code - if such an application is dismissed,
the order dismissing such an application
would be open to challenge in an appeal
under Order 43, Rule 1(k) of the Code.
(Para - 16,17)
Application for substitution filed under Order
XXII Rule 3 - without any application being filed
under Order XXII Rule 9 for setting aside
abatement - rejected - ground - it was
unaccompanied
by
any
application
for
condonation of delay and application for setting
aside abatement - present appeal under Order
43, Rule 1 (k) - preliminary objection -
maintainability of the appeal.(Para -2,4,6,8)

HELD:- It is clear that once the suit has abated
or it is dismissed or in the present case the
appeal, it was open to the person claiming to be
legal representative of the deceased to apply for
setting aside of abatement or dismissal of the
suit in terms of Order XXII Rule 9(2) of the
Code.There was no application either for setting
aside of abatement or dismissal of the suit as
required to be filed under Order XXII Rule 9(2)
of the Code. Respondent has rightly objected to
the maintainability of the appeal since it is not
maintainable from an order rejecting an
application under Order XXII Rule 3 of the
Code.(Para - 18,19)

Appeal dismissed. (E-6)

List of Cases cited:-

1. Mangluram Dewangan Vs Surendra Singh &
ors. , (2011) 12 SCC 773

2. Mst. Fakhrun & ors. Vs Hafizulla alias Kalloo &
ors. , 1999 (17) LCD 906

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. Rajeiu Kumar Tripathi,
learned counsel for appellants and Mr.
Shaquiel Ahmad, learned counsel for
respondent.

2. First Appeal from Order under
Section 104 read with Order 43, Rule 1 (k)
read with Section 141 of the Code of Civil
Procedure, 1908 (hereinafter referred to as
the Code) has been filed against order dated
31.07.2012 passed in Regular Civil Appeal
No.53 of 1995. By means of the impugned
order, the application for substitution filed