# State Of U.P. & Ors v. Satya Prakash Chaube & Anr

- **Citation:** (2025) 8 ILRA 1022
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-08-20
- **Case number:** Writ A No. 2001460 of 2015
- **Bench:** Rajan Roy, Manjive Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-satya-prakash-chaube-anr-53697
- **Pages:** 6

## Headnote

C.S.C., Yogesh Chandra Srivastava

Issue for consideration
 Whether lapse of time in filing application for
substitution of legal heirs/representatives of
contesting parties, can be a ground for dismissal
of petition?

Headnotes
A. Civil Procedural Law - Code of Civil
Procedure:
Section
141,
Order
22;
Allahabad
High
Court
Rules,
1952:
Chapter VIII: Rule 38-A - In view of the
provisions of Section 141 of the CPC,
1908, the provisions of Order XXII CPC,
1908 would not apply to writ proceedings
but it does not mean that a writ petition
can continue against a dead person,
therefore,
the
law
was
crystallized
and
harmonized by Hon'ble the Supreme Court to
the effect that though the provisions of Order
XXII of CPC, 1908 did not apply to writ
proceedings the consequences of it would be
that there would be no automatic abatement of
a writ proceedings in terms of the provisions
contained in Order XXII of CPC, 1908 but writ
proceedings cannot continue against a dead
person for the reasons which are quite obvious
and have been detailed in the said judgment. If
such an application for substitution of legal
heirs/representatives of the deceased
party is filed in writ proceedings within a
reasonable
time
then
that
can
be
considered by the Court. The Court,
however, put in a caveat that it will be
unreasonable on part of the Court to
implead the legal heirs/representatives of
the deceased respondent after lapse of
several months or years and then to direct
them to contest the claim of the petitioner
merely on the ground that after the death
of the original respondent, the right, title
or
interest
of
such
respondent
has
devolved on them. (Para 3)

Limitation Act, 1963 does not apply to writ
proceedings a preposition which is so well
settled that no further elaboration is
required. Even if principles contained in Order
XXII r/w Section 120 and 121 of Limitation Act
are applied based on Rule 38-A contained in
Chapter VIII of the Rules, 1952, this writ
petition stands abated long back as the period
of 90 days prescribed from the date of death
expired on 11.03.2021 and further period of 90
days' also expired long back but till date no
application for substitution or setting aside
abatement has been filed by the petitioners
State, although, the said provisions or principles
contained therein are not applied, rather,
explanation to Section 141 CPC, 1908 and the
law declared by Hon'ble Supreme Court in Puran
Singh (infra) are relied upon. (Para 6)

In this case till date no application for
substitution has been filed by the petitionersState although information about death of the
opposite party No.1 was given to them way
back in 2021 and in fact they responded to the
said information vide letter dated 26.02.2021, in
spite of it, they have not bothered to file an
application
for
substitution
of
legal
heirs/representatives of the opposite party No.1.
(Para 7)

Considering the lapse of more than 4 and half
years from the date of information referred
hereinabove and also considering the fact that
even today there is no such application for
substitution. The proceedings cannot be allowed
to continue any further. Writ petition, for non
substitution of the legal heirs/representatives of
the
opposite
party
No.1.,
is
accordingly
dismissed (Para 8)

Writ petitions dismissed. (E-4)

Case Law Cited
Puran Singh vs. State of Punjab, 1996 (2) SCC
205 (Para 3)

List of Acts/Statutes
 Code of Civil Procedure, 1908; Allahabad High
Court Rules, 1952; Limitation Act, 1963.

List of Keywords
 death, substitution.

Appearances for Parties
For Appellant: C.S.C.
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
For
Respondent:
C.S.C.,Yogesh
Chandra
Srivastava

## Text

1022 INDIAN LAW REPORTS ALLAHABAD SERIES
entitled to seek maintenance from him
cannot be countenanced. Learned trial court
has taken a hyper technical approach while
rejecting the claim of maintenance raised
by applicant No.1 Madhu Yadav. This is
admitted case that revisionist No.1 is not
employed any where, even if, it is assumed
that she is in possession of the ancestral
property of her previous husband Sriniwas,
on account of his death, it cannot be
assumed
that
it
is
sufficient
for
maintenance of the applicants.

30. This fact is also noticeable that
even if it is assumed that the revisionist
No.1 is second wife of the respondent
No.2. Keeping in view admission of his
wife Sangeeta that no decree of divorce
was passed in respect of her earlier
marriage with Ranjeet. On the other hand
there was no legal impediment in the
marriage between revisionist No.1 and
respondent No.2, previous husband of the
revisionist
No.1
had
already
died.
Therefore, claim of the revisionist No.1 as
wife of the respondent No.2 lies on higher
footing than that of said Sangeeta Yadav.

31. On the other hand, respondent
No.2 is employed in police department as
Constable. He is possessed of sufficient
income to maintain the applicant No.1 who
is bearing responsibility of her two minor
children also born out of her wedlock with
Sriniwas.

32. Adverting to the dicta of Hon'ble
Supreme court in Chanmuniya (supra) it can
be held that a very broad and expansive
interpretation is required to be given to term
'wife' for maintenance under Section 125
Cr.P.C. so as to include those cases where a
man and woman have been living together as
husband and wife a reasonable long period of
time, and strict proof of marriage should not
be a precondition for maintenance in such
cases. Therefore, the impugned judgment and
order is not sustainable.

33. Learned court below has committed
legal and factual error while dismissing the
application under Section 125 Cr.P.C. on the
technical ground that factum of marriage of
applicant No.1 and opposite party is not duly
proved.

34. Consequently, the impugned judgment
and order dated 18.10.2023 passed by learned
Additional Principal Judge, Family Court No.3,
Deoria is set-aside and matter is remitted to
court below for decision afresh in light of
observations made herein above treating the
revisionist as wife of the respondent No.2.
Respondent No.2 shall pay Rs.8,000/- as
interim monthly maintenance to applicant No.1
during the pendency of the maintenance case
from today which stands restored on the
strength of this revisional order.

35. Let record of learned court below be
transmitted with a copy of this judgment for
further proceedings.

36. The revision stands allowed,
accordingly with above observations.
----------
(2025) 8 ILRA 1022
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.08.2025

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE MANJIVE SHUKLA, J.

Writ A No. 2001460 of 2015

State Of U.P. & Ors. ...Petitioners
Versus
Satya Prakash Chaube & Anr.
 ...Respondents
8 All. State of U.P. & Ors. Vs. Satya Prakash Chaube & Anr.
1023
Counsel for the Petitioners:
C.S.C.

Counsel for the Respondents:
C.S.C., Yogesh Chandra Srivastava

Issue for consideration
 Whether lapse of time in filing application for
substitution of legal heirs/representatives of
contesting parties, can be a ground for dismissal
of petition?

Headnotes
A. Civil Procedural Law - Code of Civil
Procedure:
Section
141,
Order
22;
Allahabad
High
Court
Rules,
1952:
Chapter VIII: Rule 38-A - In view of the
provisions of Section 141 of the CPC,
1908, the provisions of Order XXII CPC,
1908 would not apply to writ proceedings
but it does not mean that a writ petition
can continue against a dead person,
therefore,
the
law
was
crystallized
and
harmonized by Hon'ble the Supreme Court to
the effect that though the provisions of Order
XXII of CPC, 1908 did not apply to writ
proceedings the consequences of it would be
that there would be no automatic abatement of
a writ proceedings in terms of the provisions
contained in Order XXII of CPC, 1908 but writ
proceedings cannot continue against a dead
person for the reasons which are quite obvious
and have been detailed in the said judgment. If
such an application for substitution of legal
heirs/representatives of the deceased
party is filed in writ proceedings within a
reasonable
time
then
that
can
be
considered by the Court. The Court,
however, put in a caveat that it will be
unreasonable on part of the Court to
implead the legal heirs/representatives of
the deceased respondent after lapse of
several months or years and then to direct
them to contest the claim of the petitioner
merely on the ground that after the death
of the original respondent, the right, title
or
interest
of
such
respondent
has
devolved on them. (Para 3)

Limitation Act, 1963 does not apply to writ
proceedings a preposition which is so well
settled that no further elaboration is
required. Even if principles contained in Order
XXII r/w Section 120 and 121 of Limitation Act
are applied based on Rule 38-A contained in
Chapter VIII of the Rules, 1952, this writ
petition stands abated long back as the period
of 90 days prescribed from the date of death
expired on 11.03.2021 and further period of 90
days' also expired long back but till date no
application for substitution or setting aside
abatement has been filed by the petitioners
State, although, the said provisions or principles
contained therein are not applied, rather,
explanation to Section 141 CPC, 1908 and the
law declared by Hon'ble Supreme Court in Puran
Singh (infra) are relied upon. (Para 6)

In this case till date no application for
substitution has been filed by the petitionersState although information about death of the
opposite party No.1 was given to them way
back in 2021 and in fact they responded to the
said information vide letter dated 26.02.2021, in
spite of it, they have not bothered to file an
application
for
substitution
of
legal
heirs/representatives of the opposite party No.1.
(Para 7)

Considering the lapse of more than 4 and half
years from the date of information referred
hereinabove and also considering the fact that
even today there is no such application for
substitution. The proceedings cannot be allowed
to continue any further. Writ petition, for non
substitution of the legal heirs/representatives of
the
opposite
party
No.1.,
is
accordingly
dismissed (Para 8)

Writ petitions dismissed. (E-4)

Case Law Cited
Puran Singh vs. State of Punjab, 1996 (2) SCC
205 (Para 3)

List of Acts/Statutes
 Code of Civil Procedure, 1908; Allahabad High
Court Rules, 1952; Limitation Act, 1963.

List of Keywords
 death, substitution.

Appearances for Parties
For Appellant: C.S.C.
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
For
Respondent:
C.S.C.,Yogesh
Chandra
Srivastava

(Delivered by Hon'ble Rajan Roy, J.
&
Hon'ble Manjive Shukla, J.)

1. Heard Shri Nishant Shukla, learned
Counsel for the petitioners and Shri Yogesh
Chandra Srivastava, learned Counsel for
the respondent.

2. By means of this petition which was
filed
on
19.09.2015,
the
State
has
challenged the judgment and order dated
13.04.2015 passed in Claim Petition
No.1727 of 2012 by which the claim
petition of the claimant, was allowed.
Subsequently, the claimant-Satya Prakash
Chaube-opposite party No.1 died on
11.12.2020
during
pendency
of
this
petition. Thereafter, an application dated
15.02.2021 was filed on behalf of the legal
heirs/representatives of opposite party
No.1-Satya Prakash Chaube before the
petitioner No.4 informing about death of
the opposite party No.1 and receipt of this
application is not denied by the petitioners,
in fact, postal receipts of having sent the
said application are on record and the
petitioner No.4 vide its letter dated
25.02.2021 responded to the aforesaid
application of wife of opposite party No.1
stating therein that till disposal of this writ
petition, no action can be taken in the
matter. An application dated 27.09.2024
has been filed on behalf of wife of opposite
party
No.1
in
this
Court
bearing
C.M.Application
No.IA/5/2024
seeking
dismissal of the writ petition as abated.

3. During hearing, a question arose as
to whether a writ petition abates. In this
context, we have perused the decision of
Hon'ble the Supreme Court reported in
1996 (2) SCC 205; Puran Singh vs. State
of Punjab wherein this issue came up for
consideration and Hon'ble the Supreme
Court opined that in view of the provisions
of Section 141 of the Code of Civil
Procedure, 1908 (hereinafter referred to as
'CPC, 1908') the provisions of Order XXII
CPC, 1908 would not apply to writ
proceedings but it does not mean that a writ
petition can continue against a dead person,
therefore, the law was crystallized and
harmonized by Hon'ble the Supreme Court
to the effect that though the provisions of
Order XXII of CPC, 1908 did not apply to
writ proceedings the consequences of it
would be that there would be no automatic
abatement of a writ proceedings in terms of
the provisions contained in Order XXII of
CPC, 1908 but writ proceedings cannot
continue against a dead person for the
reasons which are quite obvious and have
been detailed in the said judgment. It was
provided that if such an application for
substitution of legal heirs/representatives of
the deceased party is filed in writ
proceedings within a reasonable time then
that can be considered by the Court. The
Court, however, put in a caveat that it will
be unreasonable on part of the Court to
implead the legal heirs/representatives of
the deceased respondent after lapse of
several months or years and then to direct
them to contest the claim of the petitioner
merely on the ground that after the death of
the original respondent, the right, title or
interest of such respondent has devolved on
them. We may in this context refer to
relevant extract of aforesaid judgment in
the case of Puran Singh (supra) which
reads as under:-

"11. As such even if it is held that
Order 22 of the Code is not applicable to
writ proceedings or writ appeals, it does
not mean that the petitioner or the
8 All. State of U.P. & Ors. Vs. Satya Prakash Chaube & Anr.
1025
appellant in such writ petition or writ
appeal can ignore the death of the
respondent if the right to pursue remedy
even after death of the respondent survives.
After the death of the respondent it is
incumbent on the part of the petitioner or
the appellant to substitute the heirs of such
respondent within a reasonable time. For
purpose of holding as to what shall be
reasonable time, the High Court may take
note of the period prescribed under Article
120 of the Limitation Act for substituting
the heirs of the deceased defendant or the
respondent. However, there is no question
of automatic abatement of the writ
proceedings. Even if an application is filed
beyond 90 days of the death of such
respondent, the Court can take into
consideration the facts and circumstances
of a particular case for purpose of
condoning
the
delay
in
filing
the
application for substitution of the legal
representative. This power has to be
exercised on well known and settled
principles in respect of exercise of
discretionary power by the High Court. If
the High Court is satisfied that delay, if
any, in substituting the heirs of the
deceased respondent was not intentional,
and sufficient cause has been shown for not
taking the steps earlier, the High Court can
substitute the legal representative and
proceed with the hearing of the writ
petition or the writ appeal, as the case may
be. At the same time the High Court has to
be conscious that after lapse of time a
valuable right accrues to the legal
representative of the deceased respondent
and he should not be compelled to contest a
claim which due to the inaction of the
petitioner or the appellant has become
final."

4. We have also perused Rule 38-A
under the heading Section P-Miscellaneous
which is a part of Chapter VIII of the
Allahabad
High
Court
Rules
1952
(hereinafter referred to as 'Rules, 1952')
which reads as under:-

"[38-A :- Adjustment of appeals,
petitions and references etc.

The provisions contained in Rules
1 to 6 and 9 of Order XXII and in Order
XXXII of the Code of Civil Procedure shall,
so far as may be and with necessary
modifications and adaptations, apply to
special appeals, writ petitions under Article
226 of the Constitution and Tax Acts
references [and revisions] falling under
Chapter IX, XXII and XXVII of these
rules.]"

5. This provision was inserted vide
notification
No.310/VIII-C169
dated
03.08.1964 which was published in the
Gazette of Uttar Pradesh Part-2 on
05.12.1964, however, thereafter, CPC,
1908 has been amended and an explanation
has been added to Section 141 vide Section
47 of the Act 104 of 1976 which came into
force with effect 01.02.1977. By the said
amendment,
the
words
'Proceedings'
occurring in Section 141 of CPC, 1908 has
been explained to include 'Proceedings'
under Order IX of CPC, 1908 but with a
further clarification that it does not include
any proceedings under Article 226 of the
Constitution of India. Apparently, Rule 38A contained in Chapter VIII of the Rules,
1952 made by this High Court was inserted
prior to the said amendment. We in this
context may refer to Article 225 of the
Constitution of India under which the
Rules, 1952 have been framed. The said
provision reads as under:-

"225. Jurisdiction of existing
High Courts
1026 INDIAN LAW REPORTS ALLAHABAD SERIES

Subject to the provisions of this
Constitution and to the provisions of any
law of the appropriate Legislature made by
virtue of powers conferred on that
Legislature
by
this
Constitution,
the
jurisdiction of, and the law administered in,
any existing High Court, and the respective
powers of the judges thereof in relation to
the administration of justice in the Court,
including any power to make rules of Court
and to regulate the sittings of the court and
of members thereof sitting alone or in
Division Courts, shall be the same as
immediately before the commencement of
this Constitution:

Provided that any restriction to
which the exercise of original jurisdiction
by any of the High Courts with respect to
any matter concerning the revenue or
concerning any act ordered or done in the
collection thereof was subject immediately
before
the
commencement
of
this
Constitution shall no longer apply to the
exercise of such jurisdiction."

6. The said Rules, 1952 framed by the
Allahabad High Court in 1952 as amended
from time to time are subject to the
provisions of the Constitution of India and
to the provisions of any law of the
appropriate legislature made by virtue of
powers conferred on that legislature by the
Constitution of India. The CPC, 1908
though it is a Pre-Independence legislation,
any amendment to it subsequently falls
within the concurrent list and, therefore, the
Union Parliament as also the State
Legislature can amend it. In this case the
explanation was inserted by an Act of the
Central Legislation, which was competent
to do so, therefore, the Rule is in conflict
with the explanation to Section 141 CPC,
1908. Limitation Act, 1963 does not apply
to writ proceedings a preposition which is
so well settled that no further elaboration is
required. Even if principles contained in
Order XXII read with Section 120 and 121
of Limitation Act are applied based on Rule
38-A contained in Chapter VIII of the
Rules, 1952, this writ petition stands abated
long back as the period of 90 days
prescribed from the date of death expired
on 11.03.2021 and further period of 90
days' also expired long back but till date no
application for substitution or setting aside
abatement has been filed by the petitionersState, although, we do not apply the said
provisions or principles contained therein,
rather, we rely on explanation to Section
141 CPC, 1908 and the law declared by
Hon'ble Supreme Court in Puran Singh
(supra).

7. When we consider the issues in the
light of the law elucidated by Hon'ble the
Supreme Court, as aforesaid, we find that
in this case till date no application for
substitution
has
been
filed
by
the
petitioners-State
although
information
about death of the opposite party No.1 was
given to them way back in 2021 and in fact
they responded to the said information vide
letter dated 26.02.2021, in spite of it, they
have not bothered to file an application for
substitution of legal heirs/representatives of
the opposite party No.1.

8. Considering the lapse of more than
4 and half years from the date of
information referred hereinabove and also
considering the fact that even today there is
no such application for substitution. We do
not see as to how we can allow these
proceedings to continue any further. We,
accordingly, dismiss this writ petition for
non
substitution
of
the
legal
heirs/representatives of the opposite party
No.1.
----------
8 All. Kesar Singh Vs. State of U.P. & Ors.
1027
(2025) 8 ILRA 1027
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2025

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.
THE HON'BLE PRAVEEN KUMAR GIRI, J.

Special Appeal Defective No. 456 of 2025

Kesar Singh ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Ajay Mishra, Sri Krishna Mishra

Counsel for the Respondents:
Abhishek Kumar Pandey, Bhagwan Das,
C.S.C., Mohammad Zunaid Khan, Ranjana

Issue for consideration
 Whether the Special Appeal is maintainable
against an order passed by the learned Single
Judge that merely directs certain officers to
submit a report with regard to the Public
Interest Litigation that has been filed and
directed the appellant herein to file a counter
affidavit?

Headnotes
A. Allahabad High Court Rules, 1952:
Chapter VIII Rule 5 - If an order of the
Court is in the nature of a final order, it
could be appealable and not otherwise.
When an order is passed by the Court
affects valuable rights which amounts to
pre- hearing of the judgment, it could be
appealable. (Para 14)

Unless an order has the trappings of a final
order and/ or affects the valuable rights of a
party causing serious injustice to a party, no
appeal would lie before the Division Bench from
the order passed by a Single Judge of this
Court. (Para 16)

It is patently clear that an interlocutory order to
be appealable under Chapter VIII Rule 5 of the
Rules must adversely affect the valuable right of
a party or decide an important aspect. In order
to constitute 'appealable order', the adverse
effect on a party must be direct and immediate
and not indirect or remote. Furthermore, routine
orders passed by Single Judge of seeking
reports
and/or
directing
affidavits
to
be
exchanged that would facilitate the progress of
a case even though may cause some element of
inconvenience or prejudice to a party would not
constitute a judgment as the same does not
finally determine the rights and obligations of
the parties. (Para 17)

In the present case, the order passed is neither
an interim nor a final order affecting the interest
of any party. The learned single judge has
simpliciter sought for reports to determine the
truthfulness of the allegations made in the PIL.
Under no circumstances, such directions can be
termed as judgment and/or an interim order
that decides the vital and valuable rights of any
of the parties. (Para 18)

The issue of maintainability of the writ petition
was never raised by the appellant herein before
the learned Single Judge. The only ground
raised was that the petitioner in the said petition
wanted to withdraw the said petition (PIL)
which was rejected by the Hon'ble Judge. Such
a rejection order does not in any manner impact
any valuable rights of the appellant herein. The
appellant shall be at liberty to raise the point of
maintainability as a preliminary issue before the
Hon'ble Single Judge. (Para 19)

In the impugned order, no decision has been
taken by the learned Single Judge with regard
to the maintainability of the PIL not does it in
any manner negatively impact the valuable
rights of any party including the appellant at this
stage. (Para 23)

B. The present appeal has not been filed
by the petitioner who had wished to
withdraw the petition, but has been
filed by the respondent no. 5 in the writ
petition
against
whom
several
allegations have been made by the writ
petitioner. This itself raises questions
on the maintainability of the special
appeal.