High Court of Judicature at Allahabad
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Lal Ram v. A.D.J, Etah And Others - WRIT - C No. 33731 of 2006  RD-AH 10786 (3 July 2006)
HON'BLE UMESHWAR PANDEY, J.
Heard the learned counsel for the petitioner.
The petitioner challenges revisioal order whereby the revision of the petitioner has been rejected. It has been observed in the body of the order that by the order dated 24.11.2001 passed by the trial court (Annexure-3 to the writ petition) the whole suit of both the plaintiffs had been abated, but in fact only the suit of the deceased plaintiff No. 2 was directed to have abated. However, after making this observation the revisional court has dismissed the revision of the petitioner.
The learned counsel contends that the trial court on the restoration application had recalled that order vide its order dated 1.11.2004 (Annexure-5 to the writ petition) even though it too had observed in the body of the order itself that the whole suit was not liable to be abated. The right of plaintiff No.1 to prosecute the suit did survive even in absence of substitution of deceased plaintiff No.2, but in the operative portion the said court has allowed the restoration application and recalled the order dated 24.11.2001. If that order recalls an order of the trial court whereby it has directed the abatement of the suit only relating to the interest of the deceased plaintiff No.1 therein, the subsequent order should not have been permitted to sustain by the revisional court.
From the aforesaid facts and circumstances, it is more than obvious that both the courts below have held in its orders that for want of substitution, the suit of deceased plaintiff No.2 was alone directed to have abated vide trial court's order (Annexure-3 to the writ petition), but on account of one or the other misconception arising in the mind of the court, the operative orders dated 1.11.2004 passed by the trial court (Annexure-5 to the writ petition) and revisional order dated 23.2.2006 circumventing its own observation itself are passed. Therefore, while disposing of this writ petition I hereby direct the trial court to pass fresh orders in the light of the observations made by it in Annexure-5 to the writ petition and also in the light of the observations made by the revisional court vide Annexure-7 to the writ petition.
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