# Smt. Sumitra Devi and others v. District Judge, Chitrakoot and others

- **Citation:** (2001) 2 ILRA 67
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sumitra-devi-and-others-v-district-judge-chitrakoot-and-others-39745
- **Pages:** 4

## Text

2All] Smt. Sumitra Devi and others V. District Judge, Chitrakoot and others

them. If inspection and verification in the
presence of the candidates and revaluation
are to be allowed as of right, it may lead
to
gross
and
indefinite
uncertainty,
particularly in regard to the relative
ranking etc. of the candidates, besides
leading to utter confusion on account of
the enormity of the labour and time
involved in the process.

It was further held in the instant case
that the Court should be reluctant to
substitute its own views as to what is
wise, prudent and proper in relation to
academic matters in preference to those
formulated
by
professional
men
possessing technical expertise and rich
experience of actual day-to-day working
of
educational
institutions
and
the
departments controlling them."

12. The petitioner have neither given
facts nor they have filed any material to
show that the respondents intentionally
declared them unsuccessful. The vague
allegations made in this petition cannot be
accepted.

13. The next argument of learned
counsel for the petitioners is that once this
court summoned the answer books the
petition could not be decided unless the
respondents complied with the order. The
argument of the learned counsel for the
petitioners is devoid of any merit. Interim
order is not binding and the court can
decide the petition finally or merits. The
learned standing counsel has very fairly
urged that the order of this court has not
been complied nor any counter affidavit
has been filed, therefore, the court may
accept the allegations made in the writ
petition to be correct and decide the
petition on merits. I have examined the
records of the petition but I am not able to
persuade myself to accept the claim of the
petitioners.
The
petitioners
cannot
succeed on the basis of self-assessment
made by them now this court can issue a
director for rechecking or revaluation of
the answer books of the petitioners in
absence on any statutory rule.

For the aforesaid reasons, I do not
find any merit in this petition.

This writ petition fails and is
accordingly dismissed.
Petition Dismissed.

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By the Court

1. This writ petition has been filed
for quashing the order dated 17.11.2000
passed by respondent no. 1 in Civil (SCC)
Revision no. 15 of 98 allowing the
revision and setting aside the order dated
06.11.1998 passed by Judge, Small
Causes
Court
and
allowing
the
substitution application moved on behalf
of the respondents.

2. The plaintiff respondent no. 1
filed suit for ejectment and arrears of rent
against the defendant petitioners on the
ground of default in payment of rent.
Defendants contested the suit on the
ground that provisions of U.P. Act no. 13
of 1972 were applicable to the premises in
question and he was entitled to the
protection of the said Act. Therefore, by
simple notice under Section 106 of
Transfer of property Act his tenancy
could not be terminated. The Trial Court
decreed the suit holding that provisions of
U.P. Act no. 13 of 1972 were not
applicable to the premises in question and
tenancy was terminated on service of
notice under Section 106 of Transfer of
Property Act.
3. Aggrieved with the above order
the tenants preferred revision before this
Court being Civil Revision no. 3327 of
1997. The above revision was allowed
and case was remanded on question of
benefit of provisions of U.P. Act no. 13 of
1972 to the defendants and the question of
validity of notice, vide order dated
30.06.1980.

4. After remand the defendant Onkar
Nath
Dwivedi
died
on
31.01.1996.
Application for substitution of his legal
representatives was moved on 14.08.1981
along with application under Section 5 of
Limitation Act for condonation of delay
in moving application for setting aside the
abatement/substitution. The Trial Court
rejected the above application on the
ground that it was moved beyond time,
the case had already been abated and there
was also no sufficient ground for setting
aside
the
abatement.
The
landlord
thereafter preferred revision before the
District Judge who allowed the revision
by the impugned order setting aside the
order of the Trial Court and allowed the
substitution application on payment of Rs
200/- as costs.

It have heard the learned counsel for
the petitioners and learned counsel for
respondents no. 2 and 3.

5. It was contended by learned
counsel for the petitioner that Bharro
Prasad
Goyal
also
died,
but
no
substitution application of his legal
representatives was moved and thereafter,
the case has already abated. In his
application for substitution /amendment
Omkar Nath Agarwal had categorically
mentioned that he had purchased share of
Bhairo Prasad Goyal and Rajeshwar
Prasad Goyal and therefore they ceased
2All] Smt. Sumitra Devi and others V. District Judge, Chitrakoot and others

their interest in the property. A request
was made to mention "dead" against the
name of Bhairo Prasad Goyal. The
purchase of Share of Bhairo Prasad and
Rajeshwar Prasad by Onkar Nath was not
disputed before the Revisional Court and
was admitted in the objection against the
above application. Therefore, it was
rightly held by the Revisional Court that
on the death of Bhairo Prasad Goyal the
suit has not abated, as the plaintiff no. 1
on whom his interest devolved was
already on record and as held by the Apex
Court in the case of Mohmmad Arif Vs.
Allah Rabbani Alamin and others AIR
1982 SC 948 when party was already on
record sufficiently representing property
of the deceased respondent there is no
necessity of application to bring the legal
representative of deceased on record.

6. The next contention of the learned
counsel for the petitioner was that the
application moved by petitioners was not
a
substitution
application
but
an
amendment application. This contention
is too technical. By moving application
Annexure no. 3 the respondent has prayed
for making amendment by bringing heirs
of defendant no. 1 on record. It may be
said that application was not happily
worded incorporating word "substitution"
in the prayer, but on that technical ground
the application cannot be rejected as
justice
should
not
be
denied
on
technicalities.

7. The next contention of the learned
counsel for the petitioners was that the
direction of this Court in revision was that
provisions of U.P. Act no. 13 of 1972 are
applicable and therefore the provisions of
Order
XXIII
C.P.C.
are
also
not
applicable consequently no substitution
application can be moved. He also placed
reliance on case law Smt. Premwati and
others Vs. The IVth Additional District
Judge, Bareilly and others 1983(2) ARC,
85. The above contention of the learned
counsel
for
the
petitioners
is
misconceived as in the case realied on by
him, it was held that provisions of Order
XXII of Code of Civil Procedure have not
been made applicable to the proceedings
under Section 21 of U.P. Act no. 31 of
1972
nor
there
is
any
analogous
provisions in the Act or the Rules framed
thereunder. The proceeding in question
was not under Section 21 of U.P. Act no.
31 of 1972 but it was a proceeding under
Provincial Small Cause Courts Act and in
proceeding governed by Provincial Small
Cause Courts Act certain provisions of
C.P.C. are applicable. Assuming that the
provisions of Order XXII C.P.C. are not
applicable to the present proceeding them
there was no question of abatement or
bringing the legal representatives of
deceased defendant on record as held in
the said case.

8. It was further contended by the
learned counsel for the petitioners that
substitution application was beyond time
and it could not be allowed. The
respondents had also moved application
for condonation of delay in moving the
substitution application and setting aside
the abatement. The Revisional Court has
considered the above application and
condoned the delay. It is not disputed that
Onkar Nath died on 13.09.1996 and
application was moved on 14.08.1997 i.e.
after lapse of one year and 7 months.
Limitation for moving is 150 days (90
days for moving substitution application +
60 days for moving application for setting
aside the abatement) and therefore the
application was 14 month beyond time.
The Revisional Court has considered the
70 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
ground for delay and rightly condoned the
same. The discretion of the Revisional
Court condoning delay therefore cannot
be
interfered
with
in
exercise
of
jurisdiction under Article 226 of the
Constitution.

8. Lastly it was contended that case
had already abated and therefore the
separate applications for substitution and
for setting aside abatement would have
been moved, but only one application was
moved. This contention has also no force.
It was held by this Court in case of Smt.
Shakuntala Devi Vs. Banwari Lal AIR
1977 All. 551 that the application for
substitution
can
be
treated
as
an
application for setting aside the abatement
and for bringing on record heirs and legal
representatives
of
the
deceased
respondent. It was further held in the said
case that separate and formal application
under Section 5 of Limitation Act is also
not necessary. Court can decide whether
delay deserves to be condoned on facts
stated on affidavit in the application for
setting
aside
abatement.
Therefore
separate applications were not required.

9. Lastly it was also contended by
learned counsel for the petitioners that
since no specific prayer for setting aside
abatement and substitution was made the
Revisional
Court
wrongly
allowed
application. Reliance was also placed on
case of Apex Court decision in Shre Jain
Swetamber
Terapanthi
vid(S)
Vs.
Phundan Singh and Others, J.T. 1999(1)
SC 380. The above case is not applicable
to the facts of the present case as in the
said case it was held that relief should be
granted on pleadings of parties and no
relief in interlocutory proceeding should
be granted beyond the scope of the suit.
The above case was totally on different
point.

10. In view of above discussions and
observations I find that there is no scope
for interference in the impugned order in
the exercise of jurisdiction under Article
226 of the Constitution.

The writ petition having no force and
is liable to dismissed.

The writ petition is accordingly
dismissed.
Petition Dismissed.

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