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K.B. Agarwala Vs. Smt. Chandrawati and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 74 of 1975
Judge
Reported inAIR1976All15
ActsUttar Pradesh Urban Buildings (Regulation, Letting, Rent and Eviction) Rules, 1972 - Rule 25; Evidence Act, 1872 - Sections 115
AppellantK.B. Agarwala
RespondentSmt. Chandrawati and ors.
Appellant AdvocateDeokinandan and ;B. Dayal, Advs.
Respondent AdvocateG.N. Verma, Adv. and ;Standing Counsel
DispositionAppeal dismissed
Excerpt:
.....of their right to contest - be brought on record - not to be construed as the consent of the legal representative to be brought on record. (ii) interrogatories - section 115 of evidence act, 1872 - every application for bringing the legal representatives on record to be preferred within one month from the date of death of any person who was party to any proceedings and shall contain the names and addresses and other details of the heirs- legal representative entitled to take the plea that application for substitution made beyond the period of one month was hit by the mandatory provision and bound to be rejected. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m...........no. 1 in the special appeal, applied to be brought on the record, in the writ petition as the legal representative of the deceased. the substitution was made when the landlord on 3-4-1974 waived his objection. the writ petition came up for final hearing on 13th february. 1974 and the same was dismissed on an undertaking given by shri deokinandan, learned counsel for the landlord, that his client would reply to the interrogatories which were sought to be served on him. the dispute went back to the prescribed authority. on 2-3-1974 the landlord, sri k.b. agarwala, moved an application, a true copy whereof is annexure 7 to the writ petition. it was prayed that smt. chadrawati be brought on record as the legal representative of the deceased pt. shiv charan lal. in the body of the.....
Judgment:

Mehrotra, J.

1. This special appeal is directed against the judgment of a learned single Judge of this Court. The brief facts are these; The appellant before us, Sri K. B. Agarwala, is the landlord of premises No. 21, Muir Road. Allahabad. He initiated proceedings under Section 21 of the U. P. Act No. 13 of 1972 against the late Pt Shiv Charan Lal who was alleged to be the tenant of the said premises. It was alleged that he had left the residence in the said premises and had shifted to Khair in the district of Aligarh. It was alleged that Pt. Shiv Charan Lal had illegally permitted the respondents Nos. 3 and 4 to reside in the said premises. The landlord also averred that he was in personal need of the house in question. The three opposite parties to the application under Section 21, namely, Pt. Shiv Charan Lal as well as the respondents Nos. 3 and 4 took several pleas in defence. An application under Order 11, Rule 1, Civil Procedure Code was moved by Pt. Shiv Charan Lai seeking leave to serve interrogatories on the landlord. The said application was rejected by the Prescribed Authority and an appeal against the order of the Prescribed Authority before the District Judge, Allahabad also did not succeed. Thereafter, Pt. Shiv Charan Lal moved this Court by Civil Misc. Writ Petition No. 1554 of 1973. During the pendency of the said petition Pt. Shiv Charan Lal died on 16-9-73. It may be stated here that in the said writ petition a stay order dated 9th March, 1973, was passed staying proceedings before the Prescribed Authority. After the death pf Pt. Shiv Charan Lal Smt. Chandrawati, his widow, who is respondent No. 1 in the special appeal, applied to be brought on the record, in the writ petition as the legal representative of the deceased. The substitution was made when the landlord on 3-4-1974 waived his objection. The writ petition came up for final hearing on 13th February. 1974 and the same was dismissed on an undertaking given by Shri Deokinandan, learned counsel for the landlord, that his client would reply to the interrogatories which were sought to be served on him. The dispute went back to the Prescribed Authority. On 2-3-1974 the landlord, Sri K.B. Agarwala, moved an application, a true copy whereof is annexure 7 to the writ petition. It was prayed that Smt. Chadrawati be brought on record as the legal representative of the deceased Pt. Shiv Charan Lal. In the body of the application circumstances were set out and reasons given as to why the application could not be made earlier. The application was allowed by the Prescribed Authority on 4th May, 1974. Smt. Chandrawati moved an application dated 31st July, 1974, a true copy whereof is Annexure- 9 to the writ petition, and it was prayed that the aforesaid order dated 4th May. 1974, be set aside and the substitution application moved on 2nd March, 1974, should be dismissed. The landlord, Sri K.B. Agarwala, filed an objection to this application of Smt. Chandrawati. A true copy of the said objection dated 30th August, 1974, is Annexure 10. By its order dated 6th September, 1974, the Prescribed Authority rejected Smt. Chandrawati's application dated 31st July, 1974. Thereafter, the writ petition from which this special appeal has arisen, was filed by Smt. Chandrawati in this Court. She prayed that the order dated 4th May, 1974, be set aside. She also claimed that the order dated 6th September. 1974, be quashed as the same was based on wrong premises and assumptions. There was a further prayer for a writ or direction in the nature of mandamus directing the landlord, Sri K.B. Agarwala, to abide by the undertaking given by his counsel in the earlier writ petition No. 1554 of 1973. The writ petition was allowed by learned single Judge of this Court and the aforesaid orders dated 4th May, 1974, and 6th September, 1974, were quashed. The learned single Judge held that no notice was issued to Smt. Chandrawati of the substitution application (which is dated 22nd February, 1974, though it was moved on 2nd March, 1974). It was further held that the order dated 4th May, 1974, was passed ex parte without affording an opportunity to the legal representatives to contest the aforesaid application- The application was held to be time barred in view of the provisions of Rule 25 of the Rules framed under the U. P. Act No. 13 of 1972. The learned single Judge also held that the proceedings already stood abated when the aforesaid application dated 22nd February, 1974, was moved on 2nd March, 1974, and that there was no application under Section 3 of the Limitation Act. On these findings, the writ petition was dismissed. Feeling aggrieved the landlord has come up in the instant special appeal against the order of the learned Single Judge and in support of the appeal we have heard Shri Deokinandan and in opposition Shri G.N. Verma has made his submissions.

2. Learned counsel for the appellant contended that there could be no abatement as Order 22 of the Civil Procedure Code does not apply to the proceedings before the Prescribed Authority under the U. p. Act No. 13 of 1972. He further contended that if an order was passed without issuing notice to the legal representative then such an order could not be said to be bad in law as no vested right of the legal representative was infringed in the instant case inasmuch as a second application . under Section 21 could undoubtedly be moved against the legal representative and the rejection of the first application could not be fatal to the maintainability of the second application. He contended that the provision of Order 22 Rule 9 C. P. C. is a different one inasmuch as after abatement a second suit cannot be filed on the same cause of action. Learned counsel next contended that as there was a stay order from this Court staying proceedings before the prescribed Authority therefore, the aforesaid substitution application could not be moved before the said stay order stood discharged by the dismissal of the writ petition on 13-2-1974. Lastly, it was contented that Smt. Chandrawati herself chose to come on record by moving an application dated 2nd September, 1974, a true copy whereof is Annexure 5. Learned counsel placed reliance on an unreported decision of this Court dated 20th September, 1974, in Special Appeal No. 153 of 1974. R. C. Garg v. Union of India.

3. We have given due consideration to the aforesaid submissions of the learned counsel for the appellant. In our opinion, however, the appeal lacks merit We do not agree with the contention made on behalf of the appellant that by moving the application dated 2nd September, 1974, the legal representative gave up her right to contest the substitution application. It should be Pointed out that Smt. Chandrawati had already moved an application dated 31st July, 1974, for recalling the ex parte order dated 4th May, 1974. The said application was pending disposal on the date when Smt. Chandrawati moved the application dated 2nd September, 1974, praying that the landlord be ordered to reply in full to certain interrogatories. The application dated 31st July. 1974, had been directed by the court to be put up for disposal on the date of the final hearing of the application under Section 21. The final hearing was ultimately fixed for 6th September, 1974. It is, therefore, obvious that the application dated 2nd September. 1974, was made for the sake of precaution so that if Smt. Chandrawati did not succeed in her application dated 31st July, 1974, then her case should not suffer on account of her failure to press the interrogatories served on the landlord. Otherwise also we do not think that a mere participation in the proceedings without any waiver of her right to contest to be brought on record can be construed as the consent of the legal representative to be brought on record. We also do not see any merit in the learned counsel's contention that on account of the stay order passed by this Court the landlord could not move an application for the substitution of the legal representative in the proceedings before the prescribed Authority. The stay order merely was a direction to the prescribed Authority not to proceed with the case but there was no stay order against any party moving the prescribed Authority for bringing the legal representative on record. Moreover, Section 9 of the Indian Limitation Act clearly lays down that where once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it. Admittedly, for bringing a legal representative on record, the starting point for limitation is the date of death. Rule 25 of the U. P. Urban Buildings (Regulation, Letting, Rent & Eviction) Rules, 1972 lays down as under:

'Rule 25. Bringing legal representatives on record. (1) Every application for substituting the names of the heirs or legal representatives of any person who was a party to any proceedings under the Act and died during the pendency of the proceeding shall be preferred within one month from the date of the death of such person.

(2) The application shall contain the names and addresses and other details of the heirs or legal representatives and their relationship with the deceased and, be accompanied by an affidavit in its support, and thereupon, the application shall be decided after a summary enquiry by the authority concerned.' Pt. Shiv Charan Lal died on 16th September. 1973 and, therefore, the limitation began to run from the said date and any stay order passed by a court could not stop the running of limitation. So iar as the contention of the learned counsel on the question of abatement is concerned, we do not think that is really a material question. Whether the proceedings stood abated or not in the sense in which that expression is used in Order XXII. Civil Procedure Code really did not arise in the instant case. The short point was that an application for bringing, on record the legal representatives could be moved before the Prescribed Authority within one month from the death of a party to the proceeding. It is admitted by the learned counsel for the appellant that the new Limitation Act, 1963 is applicable to the proceedings under the U. P. Act No-13 of 1972. Sub-section (1) of Section 3 of the Limitation Act clearly lays down: 'Subject to the provisions contained in Sections 4 to 24 (inclusive) every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.'

4. In this view of the matter, the legal representative was entitled to say that any application for substitution made beyond the period of one month was hit by the mandatory provision of Section 3 and was, therefore, bound to be rejected. Whether there was an abatement or not is not a material point and did not fall for adjudication. We think, with respect to the learned single Judge, that he should not have raised and gone into that question.

5. Lastly, we do not agree with the learned counsel for the appellant that no right accrued in favour of the legal representatives to question the ex parte order passed on 4-5-74, on the ground that the substitution application was a time-barred one because it was open to the landlord to move a second application under Section 21. The distinction which he has sought to make with reference to the suits, in our opinion, is not valid. The legal representative has a right under Rule 25 of the aforesaid rules to claim that any application moved beyond one month shall be rejected in view of the provisions of Section 3 of the Limitation Act. It is a valuable right and the mere fact that a second application can be moved under Section 21 against the legal representative, in no way, detracts from such right.

6. We do not think that in these proceedings, we should go into the merits of the application dated 22nd February, 1974. Whether a separate application under Section 5 of the Limitation Act was necessary or not, whether sufficient cause was made out or not all these and other aspects have to be decided by the Prescribed Authority and not by us.

7. We, therefore, dismiss the appeal and direct that the Prescribed All-thority shall dispose of the aforesaid substitution application dated 22nd February, 1974, after due notice to the legal representative sought to be brought on record and the parties shall be entitled to raise such pleas as are open to them in law in support of or against the said application. In the circumstances, costs shall be easy.

8. The record of the Prescribed Authority shall be sent down without any further delay.


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