Allowed

Mahendra and Others v. Smt. Gyan Devi and Others

Allahabad HC17 Apr 2018WRIB/5024/2006

Case brief

AI extract

What is this about?

A single-judge High Court writ petition challenging a Board of Revenue order that dismissed a substitution application and declared an appeal abated due to the death of a party. The Court held the Board failed to examine the condonation of delay and denied a hearing on merits, setting aside the impugned order.

What did the court decide?

The writ petition is allowed; the order dated 16.9.2005 is set aside; matter remanded to Board of Revenue to decide the appeal on merits after substitution within four months.

Mahendra and Others Vs Smt. Gyan Devi and Others — Property and Title | Allahabad HC (2018)

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Court No. - 11

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Case :- WRIT - B No. - 5024 of 2006 Petitioner :- Mahendra & Others Respondent :- Smt. Gyan Devi & Others Counsel for Petitioner :- S.L. Singh,B.V. Singh,Roshan Kumar Singh Counsel for Respondent :- C.S.C.,Anjani Kumar Mishra,Pramod Jain,Sunil Vashisth

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Hon'ble Salil Kumar Rai,J.

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Heard counsel for the petitioners and Sri Pramod Jain, Advocate representing respondent nos. 1/1 to 1/4 as well as the Standing Counsel who represents respondent nos. 2 and 3.

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The husband of deceased respondent no. 1 instituted Case No. 74 of 1991 against the petitioners under Section 229-B of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950') which was decreed on 16.1.1997. Against the judgment and decree dated 16.1.1997, the petitioners filed an appeal under Section 331(3) of the Act, 1950 before the Commissioner, Meerut Division, District Meerut which was numbered as First Appeal No. 24 of 1996-97 and was dismissed vide order dated 7.8.1998. Subsequently, the petitioners filed a second appeal under Section 331(4) of the Act, 1950 before the Board of Revenue, Uttar Pradesh which was registered as Second Appeal No. 12/Z/M of 1998-99. During the pendency of the aforesaid second appeal, respondent no. 1 died on 19.5.2000. On 15.6.2004, the heirs of deceased respondent no. 1, who have been impleaded as respondent nos. 1/1 to 1/4 in the present writ petition, filed an application in Second Appeal No. 12/Z/M of 1998-99 bringing to the notice of the Court the fact regarding the death of respondent no. 1 and prayed that the second appeal be dismissed as abated as no substitution

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application praying for substituting the heirs of respondent no. 1 had been filed by the petitioners/appellants in the said second appeal. On the receipt of the said application, the petitioners filed a substitution application under Order 22 Rule 4 of the Code of Civil Procedure, 1908 along with an amendment application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 praying to substitute the heirs of respondent no. 1 in place of respondent no. 1 and for corresponding amendments in the memo of appeal. A delay condonation application was also filed by the petitioners praying for condoning the delay in filing the said substitution application. It was stated in the applications and the affidavit filed in support of the said applications that the petitioners had come to know about the death of respondent no. 1 only when they received a copy of the application dated 15.6.2004 filed by the heirs of respondent no. 1. The Board of Revenue vide its order dated 16.9.2005 dismissed the substitution as well as the corresponding amendment applications filed by the petitioners and declared Second Appeal No. 12/Z/M of 1998-99 as abated. The order dated 16.9.2005 passed by Board of Revenue has been challenged in the present writ petition.

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A perusal of order dated 16.9.2005 passed by the Board of Revenue shows that the aforesaid order has been passed by the Board of Revenue relying on the statements of the counsel for respondent nos. 1/1 to 1/4 that the house of the deceased respondent no. 1 and the petitioners were adjacent and the petitioners had participated in the funeral of respondent no. 1 and therefore had knowledge of the

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death of respondent no. 1. No finding has been recorded by the Board of Revenue regarding the correctness of aforesaid statement made by the counsel for respondent nos. 1/1 to 1/4. The other reason given by the Board of Revenue to dismiss the applications filed by the petitioners is that the substitution application was time barred even if it was assumed that the petitioners came to know about the death of respondent no. 1 through application dated 15.6.2004. The rejection of the substitution application by the Board of Revenue on the aforesaid ground is unreasonable as in the said circumstance the Board should have considered the delay condonation application filed by the petitioners and whether it was a fit case for condonation of delay which, as evident from the impugned order of the Board, the Board has failed to consider. Apart from above, Second Appeal No. 12/Z/M of 1998-99 arose out of proceedings under Section 229-B of the Act, 1950 and therefore it would have been appropriate that the petitioners were given an opportunity to contest their appeal on merits as the Board of Revenue is the apex authority under the Act, 1950 and dismissing the substitution application amounts to closing all options of the petitioners to contest their appeal on merits. It was stated by Supreme Court in Sital Prasad Saxena (dead) vs. Union of India and others AIR (1985) SC 1, "Let it be recalled what has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted and not to make them penal statutes for punishing erring parties."

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For the aforesaid reasons, the writ petition is allowed. The

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order dated 16.9.2005 passed by the Board of Revenue is set-aside.

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The matter is remanded back to the Board of Revenue to decide Second Appeal No. 12/Z/M of 1998-99 on merits after substituting the heirs of respondent no. 1 and within four months from the date a certified copy of this order is produced before him by either of the parties.

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With the aforesaid directions, the writ petition is allowed . Order Date :- 17.4.2018/Satyam

Mahendra and Others v. Smt. Gyan Devi and Others

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Mahendra and Others v. Smt. Gyan Devi and Others

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