Allowed

Sushil Kumar and 2 Others v. State of U.P. and 9 Others

Allahabad HC18 Mar 2021WRIB/66/2021

Case brief

AI extract

What is this about?

The High Court, in a writ petition, quashed an order rejecting a belated substitution application. The Court held that technical defects such as missing delay explanation and incorrect legal citation were curable. Without providing an opportunity to cure these defects, the lower court's order was not sustainable.

What did the court decide?

The impugned order dated 14.09.2020 was quashed and the matter remitted to be decided afresh after the petitioner files a fresh application curing the defects.

Sushil Kumar and 2 Others Vs State of U.P… — Civil Procedure and Limitation | Allahabad HC (2021)

¶1

Court No. - 6

¶2

Case :- WRIT - B No. - 66 of 2021 Petitioner :- Sushil Kumar And 2 Others Respondent :- State Of U.P. And 9 Others Counsel for Petitioner :- Rahul Kumar Tyagi Counsel for Respondent :- C.S.C.,Manu Saxena

¶3

Hon'ble Ajay Bhanot,J.

¶4

Matter is taken up in the revised call. None appears on behalf of the respondents. The name of counsel for the respondents is shown in the cause list.

¶5

By the impugned order substitution application tendered by the petitioners in Case no. 00782/2020, Computer Case no. C202011000000782 has been rejected. The impugned order primarily recites three reasons for declining to allow the substitution application. Firstly, the date of death was not disclosed in the application. Secondly the correct provision of law was not mentioned in the application. Thirdly the application was belated by nine years and the case stood abated.

¶6

Sri Rahul Kumar Tyagi, learned counsel for the petitioner fairly concedes that the substitution application was not accompanied by a delay condonation application. These defects in the application were technical and curable in nature.

¶7

Heard learned counsel for the petitioner.

¶8

A perusal of the record shows that the substitution application was belated by nine years. The substitution application was not supported by any delay condonation application nor any cause for such delay was asserted in the application itself. However, the aforesaid technical defect were curable in nature. Before accepting the application, technical defects should have been pointed out to the petitioner.

¶9

The aim of Courts of Law is to adjudicate the matters on merits

¶10

where substantive rights of parties are engaged. Parties should not be non suited on technical grounds alone. Even in matters of delay condonation application the Courts have always adopted liberal approach.

¶11

The order seems to be vitiated on this point. The error in the impugned order is compounded by the fact that the courts below cited failure of the petitioner to record correct provisions of law as one of the cause for dismissing the application. Likewise the date of death not having been disclosed was also made a reason for finding against the petitioner. All the said infirmities were curable in nature. The petitioner should have been given an opportunity to cure the aforesaid defects. Thereafter the court below ought to have decided the application on merits.

¶12

In such view of the matter the order dated 14.09.2020 is not sustainable in law. The order dated 14.09.2020 is quashed. The matter is remitted to respondent no. 3, Sub-Divisional Magistrate, Mawana, District Meerut. A writ of mandamus is issued commanding respondent no. 3, Sub-Divisional Magistrate, Mawana, District Meerut to execute the following directions;

¶13

(i) The petitioner shall file a fresh application disclosing the cause for the delay in making the substitution application. The other defects namely the citation of correct provision and the date of death shall also be cured in the aforesaid application. The application shall be filed within four weeks.

¶14

(ii) The court below shall upon receipt of such application give an opportunity to the opposite party and decide the application afresh in accordance with law.

¶15

This Court has not entered into the merits of the case of the petitioner in regard to the delay in filing the substitution application. It is for the court below to independently apply its mind and pass judgment on that point.

¶16

The writ petition is allowed in the above terms.

¶17

Order Date :- 18.3.2021 Pravin

Sushil Kumar and 2 Others v. State of U.P. and 9 Others

Case brief

What is this about?

What did the court decide?

Sushil Kumar and 2 Others v. State of U.P. and 9 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Isahan Vs Deputy Director of Consolidation and 3 Others

Anil Kumar Jain Vs State of U.P. and 5 Others

Smt. Sushma Vs State of U.P. and 3 Others

Lakshmi Prasad Vs Deputy Collector/Settlement Officer of Consolidation and 2 Others

Ganga Sahay and 2 Others Vs Depuy Director of Consolidation and 14 Others

Ashok Kumar Tiwari Vs Deputy Director of Consolidation and Another