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SMT. SANWARI DEVI versus SMT. SHAKUNTALA VAISH

High Court of Judicature at Allahabad

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Smt. Sanwari Devi v. Smt. Shakuntala Vaish - SECOND APPEAL No. 220 of 1981 [2006] RD-AH 10824 (3 July 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

Hon. S.P. Mehrotra, J.

1. Civil Misc. (Delay Condonation) Application No. 43687 of 2006

2. Civil Misc. (Setting Aside Abatement) Application No. 43688 of 2006

3. Civil Misc. (Substitution) Application No. 43689 of 2006

The aforementioned Substitution Application (shown at Sl.No. 3 above) has been filed for bringing on record the heirs and legal representatives of Smt. Sanwari Devi (plaintiff-appellant) in Civil Misc. (Restoration) Application No. 40564 of 1997.

The aforementioned Delay Condonation Application (shown at Sl.No. 1 above) has been filed for condoning the delay in filing the aforesaid Substitution Application (shown at Sl.No. 3 above).

Civil Misc. (Setting Aside Abatement) Application No. 43688 of 2006 (shown at Sl.No. 2 above) has been filed, interalia, praying for setting aside the abatement of the Second Appeal. The said Application will be considered while considering Civil Misc. Substitution Application No. 12980 of 2002 and Civil Misc. (Delay Condonation) Application No. 12977 of 2002, which have been filed for bringing on record the heirs and legal representatives of Smt. Sanwari Devi (plaintiff-appellant) in the Second Appeal.

The present order is being passed on the aforementioned Delay Condonation Application (shown at Sl.No. 1 above) and the aforementioned Substitution Application (shown at Sl.No. 3 above).

It appears that by the order dated 27.3.1997, the Second Appeal was dismissed for non-prosecution.

The aforementioned Civil Misc. (Restoration) Application No. 40564 of 1997 was filed on behalf of the said Smt. Sanwari Devi (plaintiff-appellant), interalia, praying for recalling the said order dated 27.3.1997 and for restoring the Second Appeal to its original number.

It further appears that the aforesaid Civil Misc. (Substitution) Application No. 12980 of 2002 alongwith Civil Misc. (Delay Condonation) Application No. 12977 of 2002 was filed on 11.1.2002, interalia, praying for bringing on record the heirs and legal representatives of Smt. Sanwari Devi (plaintiff-appellant), who had expired.

It further appears that on 20.5.2005, the aforesaid Civil Misc. (Substitution) Application No. 12980 of 2002 alongwith Civil Misc. (Delay Condonation) Application No.12977 of 2002 as well as the aforesaid Civil Misc. (Restoration) Application No. 40564 of 1997 were taken up by the Court. After considering the said Applications, the Court passed an order dated 20.5.2005, interalia, giving time to the learned counsel for the proposed heirs and legal representatives of the said Smt. Sanwari Devi (plaintiff-appellant) for filing Substitution Application for bringing on record the heirs and legal representatives of the said Smt. Sanwari Devi (plaintiff-appellant) in the aforesaid Restoration Application.

Accordingly, the aforementioned Civil Misc. (Delay Condonation) Application No. 43687 of 2006 (shown at Sl.No. 1 above) and Civil Misc. (Substitution) Application No. 43689 of 2006 have been filed on behalf of the proposed heirs and legal representatives of the said Smt. Sanwari Devi (plaintiff-appellant). The aforementioned Delay Condonation Application and the aforementioned Substitution Application (shown above at Sl. Nos. 1 and 3, respectively) are supported by an affidavit, sworn on 23.2.2006.

It is, interalia, stated in the said affidavit that the said Smt. Sanwari Devi (plaintiff-appellant) died in March, 1997 leaving behind Keshav Prasad (son), Ramesh Chandra (son), Dinesh Chandra (son) and Rama Shanker (husband) as her heirs and legal representatives. Details in regard to the said heirs and legal representatives are mentioned in paragraph 2 of the said affidavit.

Reasons for the delay in filing the aforementioned Substitution Application (shown at Sl.No. 3 above) have been stated in paragraphs 4,5,6,7,8,9 and 10 of the said affidavit. Copies of the aforementioned Delay Condonation Application (shown at Sl.No. 1 above) and the aforementioned Substitution Application (shown at Sl.No. 3 above) were served on Shri Subhash Mani Tripathi, learned counsel appearing for the defendant-respondent.

By the order dated 20.4.2006, notices were directed to be issued on the aforementioned Delay Condonation Application (shown at Sl.No. 1 above) and the aforementioned Substitution Application (shown at Sl.No. 3 above).

It was further observed in the said order dated 20.4.2006 that as copies of the said Applications had already been served on Sri Subhash Mani Tripathi, appearing for the defendant-respondent, notice need not be sent to the defendant-respondent.

No counter affidavit has been filed on behalf of the defendant-respondent in reply to the aforementioned Applications (shown at Sl. Nos. 1 and 3 above) and their accompanying affidavit.

Case has been taken up in the revised list today. Learned counsel for the proposed heirs and legal representatives of the said Smt. Sanwari Devi (plaintiff-appellant) is present. However, the learned counsel for the defendant-respondent is not present.

I have heard the learned counsel for the proposed heirs and legal representatives of the said Smt. Sanwari Devi (plaintiff-appellant), and perused the record.

As noted above, no counter affidavit has been filed in reply to the aforementioned Delay Condonation Application (shown at Sl.No. 1 above) and the aforementioned Substitution Application (shown at Sl.No. 3 above). None is present on behalf of the defendant-respondent today.

The averments made in the affidavit filed in support of the aforementioned Applications have not been controverted on behalf of the defendant-respondent. There is, thus, no reason to doubt the correctness of the averments made in the affidavit filed in support of the aforementioned Applications.

Having perused the averments made in the said affidavit, I am satisfied that sufficient cause has been made out for condoning the delay in filing the aforementioned Substitution Application (shown at Sl.No. 3 above).

Accordingly, the aforementioned Delay Condonation Application (shown at Sl.No. 1 above) is allowed. The delay in filing the aforementioned Substitution Application (shown at Sl.No. 3 above) is condoned.

I am further satisfied that the aforementioned Substitution Application (shown at Sl.No. 3 above) deserves to be allowed. Accordingly, the aforementioned Substitution Application (shown at Sl.No. 3 above) is allowed.

Let the name of Smt. Sanwari Devi (plaintiff-appellant) be struck-off from the array of parties in the aforementioned Civil Misc. (Restoration ) Application No.40564 of 1997, and the names of her heirs and legal representatives, namely, Keshav Prasad (son), Ramesh Chandra (son), Dinesh Chandra (son) and Rama Shanker (husband), whose details are given in paragraph 2 of the affidavit accompanying the aforementioned Applications, be substituted as the plaintiffs-appellants nos. 1/1, 1/2 , 1/3 and 1/4, respectively.

Let necessary amendments be made within four weeks.

The aforementioned Civil Misc. Substitution Application No. 12980 of 2002 and Civil Misc. (Delay Condonation) Application No. 12977 of 2002 will be listed for orders thereafter.

Dt. 3.7.2006

safi (S.A. 220/1981)


Copyright

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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