Disposed

Sunil Kumar Vijh and 2 Others v. Prem Chandra Vishwakarma

Allahabad HC27 Apr 2024A227/1952/2024

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What is this about?

This order records arguments on a writ petition challenging the trial court's allowance of defendant substitution after 552 days from demise. The petitioners argue the suit abated. The High Court grants time for affidavits, stays previous orders, and lists the matter for future hearing.

What did the court decide?

Respondents granted three weeks to file counter affidavit; petitioners two weeks to file rejoinder listing fixed for 29.07.2024; operation of order dated 16.01.2024 stayed; application for impleadment

Sunil Kumar Vijh and 2 Others vs Prem… — Civil Procedure and Limitation | Allahabad HC (2024)

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Court No. - 7

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Case :- MATTERS UNDER ARTICLE 227 No. - 1952 of 2024

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Petitioner :- Sunil Kumar Vijh And 2 Others Respondent :- Prem Chandra Vishwakarma Counsel for Petitioner :- Mohd. Shakeel Counsel for Respondent :- Santosh Kr. Yadav Warsi

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Hon'ble Alok Mathur,J.

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Heard Sri Mohd. Shakeel, learned counsel for petitioner as well as Sri Deepesh Kumar Yadava, Advocate holding brief of Sri Santosh Kr. Yadav Warsi, learned counsel for respondents.

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The petitioners by means of present writ petition under Article 227 of the Constitution of India has challenged the order dated 13.02.2023 passed in Regular Suit No. 150 of 2012 and allowed the application preferred by respondents for substitution of defendant No. 3 in the aforesaid suit.

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It has been submitted that the said application was filed after 552 days from the demise of defendant No. 3. The trial court had allowed the application for substitution by imposing a cost of Rs. 1000/-. The petitioners being aggrieved by the order of the trial court dated 13.02.2023 had preferred a revision before the Additional District and Sessions Judge, Lucknow stating that the application for substitution was not supported by an application for abatement nor was is there any application for condonation of delay in filing the application for abatement and consequently the suit would be deemed to have been dismissed as abated and in absence of any application, abatement could not have been set aside and consequently assails both the impugned orders.

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In support of his submissions, he has relied upon the judgement of his Court passed in First Appeal No. 1061 of 1990 (Uttar Pradesh Avas Evam Vikas Parishad, Lucknow Vs. Balbir Singh and another) decided on 16.08.1999 where in absence of any application for setting aside of the abatement, it has been held that the appeal abates and the the same liable to be dismissed.

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In light of the above, matter requires consideration.

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Accordingly, respondents are granted three weeks time to file counter affidavit. Petitioners shall have two weeks thereafter to file rejoinder affidavit.

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List this case on 29.07.2024.

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Till the next date of listing, operation of order dated 16.01.2024 shall remain stayed.

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Learned counsel for petitioners has moved an application for impleadment which is taken on record.

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Learned counsel for respondent is also granted three weeks time to file objection to the same.

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(Alok Mathur, J.)

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Order Date :- 8.5.2024 Ravi/

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Digitally signed by :- RAVI SHANKAR SRIVASTAV High Court of Judicature at Allahabad, Lucknow Bench

Sunil Kumar Vijh and 2 Others v. Prem Chandra Vishwakarma

Case brief

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Sunil Kumar Vijh and 2 Others v. Prem Chandra Vishwakarma

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