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SUSHIL KUMAR RAI AND ANOTHER versus MST. JANAK DULARI AND OTHERS

High Court of Judicature at Allahabad

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Sushil Kumar Rai And Another v. Mst. Janak Dulari And Others - WRIT - C No. 4543 of 2006 [2006] RD-AH 2558 (1 February 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 23

Civil Misc. Writ Petition No. 4543 of 2006

Sushil Kumar Rai & another Vs. Mst Janak Dulari and others

Hon'ble Umeshwar Pandey, J.

Heard learned counsel for the parties.

This petition has been directed against the order dated 19.11.2005 whereby the court below has rejected the application, which was moved by the petitioners for permitting them to take steps for issuing notices to the parties.

The previous history of the case is very important for reference. In Civil Revision Case No. 196 of 2004 one of the opposite parties had died and his heirs were said to be already on record. An application 14A2 was moved by the revisionist for deleting the name of the deceased opposite party No. 2 from the array of the parties in the memo of revision. Instead of issuing notices on that application to the parties, the court vide order dated 01.10.2005 allowed it straightway and directed the required substitution to be recorded and further directed to take steps for notice to the opposite parties for hearing of the revision. It is thereafter only that the application (Annexure-5) was moved by the revisionist. No head or tail of this application is comprehendible by a prudent man. This application is wholly misconceived and it is not decipherable as to what sort of prayer has been made therein. However, the fate of this application was nothing but a rejection order which was done by the court vide impugned order.

In the facts and circumstances, as demonstrated above, it is quite obvious that the application 14A2, which was moved by the revisionist and upon which the order was passed on 01.10.2005 (Annexure 4) was in substance an application for substitution of the deceased opposite party under Order XXII, Rule 2 C.P.C. If such application was to be disposed of in a case where the opposite parties were not represented, the notices would be required to be sent to them prior to such disposal of the application.

From the submissions of the learned counsel for the petitioners, it so appears that it is in order to correct this illegality committed by the court below, the subsequent application in Annexure 5 was given. But a perusal of the said application does not make out any thing from beginning to end and it cannot be said that this is given for correcting the procedural mistake committed by the trial court. In fact, what was required in the circumstances by the revisionist at that point of time  after order dated 01.10.2005, Annexure-4, was passed, was to move an application under Section 151 C.P.C. only for recalling the said order, as it has been passed without complying to the procedure provided for disposal of the substitution.  In-stead of moving such application, under Section 151 C.P.C. this application (Annexure 5) was given, which has been rightly rejected.

The impugned order dated 19.11.2005 is not at all challengeable as in substance it does not amount to rejecting the application, in Annexure 5 . Therefore, this writ petition against the said order hardly have any merit  and is accordingly dismissed. It is however observed that the petitioners may move the court below with their prayer for recalling order dated 01.10.2005, which shall be taken up and disposed of in accordance with law.

01.02.2006

gp/


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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