High Court of Judicature at Allahabad
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Arjun Das v. D.J., Jhansi & Others - WRIT - A No. - 21352 of 2000  RD-AH 18285 (26 November 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 7
CIVIL MISC. WRIT PETITION NO. 21352 OF 2000
Arjun Das vs. District Judge, Jhansi and others
Restoration Application No. 130161 of 2005 filed by Arjun Das
Hon'ble Sunil Ambwani, J.
Heard Ms. Nandita Adaval for the petitioner.
By this writ petition filed in the year 2000, impleading Shri Sukh Swaroop Bhatnagar-the landlord as respondent no. 2 the petition-tenant has prayed for setting aside the order dated 9.3.2000 of the revisional court, confirming the judgment of the Judge, Small Causes Court, Jhansi dated 19.1.1995 decreeing the suit for arrears of rent and ejectment. The dispossession of the petitioner was stayed by an order dated 5.5.2000.
A short counter affidavit was filed by Shri Som Swaroop Bhatnagar through Shri Prakash Gupta, Advocate, stating in paragraph-3 that Shri Sukh Swaroop Bhatnagar died on 7.4.1995. He was impleaded in the revision. The writ petition was filed against the dead person and should be dismissed.
The certified copy of the order of the revisional court does not show the name of Sukh Swaroop Bhatnagar. The copy of the short counter affidavit filed by Shri Som Swaroop Bhatnagar was not served on the counsel for the petitioner.
The order sheet however shows that on 1.10.2004, Shri Prakash Gupta had raised objections that the writ petition has been filed against the dead person. The order reads as follows:-
"List this case after three weeks, as an objection has been raised that this petition has been filed against the dead person."
The writ petition was thereafter dismissed for want of prosecution on 29.10.2004.
The restoration application has been filed again impleading Shri Sukh Swaroop Bhatnagar to which counter affidavit has been filed by Shri Som Swaroop Bhatnagar son of late Sri Sukh Swaroop Bhatnagar that the proceedings should not continue against his father, who had died on 7.4.1995.
I find that the petitioner was noticed and has been given sufficient opportunity to correct the mistake. The petitioner however does not wish to realise the situation and wants to continue the proceedings and to dispose of the writ petition against the dead person. Further I find that the petitioner has filed another writ petition No. 42806 of 2007 against the execution proceedings taken by Shri Som Swaroop Bhatnagar for executing the decree of eviction. The petitioner as well as his counsel are as such well informed that Som Swaroop Bhatnagar aged 62 years is representing his dead father.
The restoration application cannot proceed against the dead person and is accordingly rejected.
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