Rakesh Tiwari, J.@mdashHeard learned counsel for the parties and perused the record.
2. It appears that an application under Section 21(1)(a) of U.P. Act No. 13 of 1972 for release of the accommodation in dispute was moved by the respondent which was registered as Rent Case No. 27 of 2006, Badre Alam v. Smt. Begum Mustajbunnisha and others. The aforesaid release application was allowed by the Prescribed Authority vide his order dated 9.4.2009.
3. Aggrieved by the aforesaid order, Rent Control Appeal No. 35 of 2009, Smt. Begum Mustajbunnisha v. Badre Alam was preferred before the appellate Court.
4. An application was moved by the petitioners in that case for time to move substitution application on the ground that death certificate of the deceased could not be received. Thereafter the date was fixed for 8.6.2010 and 6.7.2010. The petitioner moved an application on 28.7.2010 along with death certificate of deceased Smt. Begum Mustajbunnisha and further 15 days'' time was sought to bring the name of her heirs on record. However, the application was rejected by the VIIth Additional District & Sessions Judge, Kanpur Nagar vide his order dated 28.7.2010 on the ground that the appeal stands abated as the limitation for filing the substitution application was 15 days. Thereafter, the petitioners moved another application dated 18.8.2010 under the provisions of Rule 22 (f) of U.P. Act No. 13 of 1972 praying for setting aside the abatement, yet another application dated 18.8.2010 under Order 6 Rule 17 read with Section 151 C.P.C. was moved by the petitioners for amendment in the memo of appeal. Both these applications are pending.
5. The contention of learned counsel for the petitioners is that under Rules 22(f) and 25(1) of U.P. Act No. 13 of 1972 the limitation is of one month for moving the substitution application and he submits that even after moving of the substitution application beyond this period appeal could not abate. Learned counsel for the petitioners further submits that Rule 25(1) provides limitation for one month for moving substitution application for bringing on record the legal heirs and representatives of the deceased party but this rule does not say any where the effect if such an application is not made within time and there is nothing in this Rule to indicate that the proceedings will abate if no application is made within a month of the date of party. He states that since the Rule is silent in this regard, the provisions of this Rule are at the best be directory and not mandatory. Admittedly, the petitioners have not moved an application within a period of one month as provided in Rule 22(f) as well as Rule 25 of U.P. Act No. 13 of 1972. Even if the Rule is directory as argued by the learned counsel for the petitioners, he has to give sufficient reasons for moving application along with delay condonation application.
6. In the instant case, no delay condonation application has been filed along with the substitution application. It is only after the aforesaid application was rejected by the court below that the delay condonation application has been filed. Since no delay condonation application has been filed along with the said application, the court below has rightly rejected the application. The case law cited by the learned counsel for the petitioners rendered in Subhash Chandra Saxena v. Prescribed Authority (Rent Control) Cum IInd Addl. Civil Judge, Kanpur and others in Writ Petition No. 5683 of 1979, decided on March 5, 1981, therefore, does not apply to the facts and circumstances of the present case.
7. The next contention of learned counsel for the petitioners is that admittedly the death of Smt. Begum Mustajbunnisha has taken place on 23.5.2010, yet an application 31 Gha has been moved on 8.6.2010 interalia that she is on ventilator, hence time was sought on this ground in the case.
8. The Prescribed Authority/Civil Judge (Senior Division), Kanpur Nagar has passed an order dated 11.8.2010 for dispossession of the petitioners by police force.
9. The petitioners in the circumstances has prayed for issuance of a writ in the nature of certiorari for quashing the impugned order dated 28.7.2010 passed by the VIIth Additional District Judge, Kanpur Nagar in Rent Case No. 35 of 2009, Smt. Begum Mustajbunnisha v. Badre Alam which has been appended as Annexure5 to the writ petition and also for quashing of the order dated 11.8.2010 passed by the Civil Judge (Senior Division), Kanpur Nagar in Misc. Rent Case No. 2/23 of 2009, Badre Alam v. Smt. Begum Mustajbunnisha, appended as Annexure8 to the writ petition.
10. Further relief in the nature of mandamus has also been sought for commanding the VIIth Additional District Judge, Kanpur Nagar, the appellate authority to decide the substitution application filed by the petitioners on 18.8.2010 under Rule 22(f) of U.P.Act No. 13 of 1972 and hear Rent Control Appeal No.l 35 of 2009, Smt. Begum Mustajbunnisha v. Badre Alam on merit.
11. By order dated 28.7.2010, the VIIth Additional District Judge,Kanpur Nagar has found the appeal of the appellant tenant has been abated in the facts and circumstances considered in the judgment and as such there is no justification for grant of time. The relevant portion of the order dated 28.7.2010 is as under:
12. In so far as the order dated 11.8.2010 is concerned, the court below has held that as the tenanted portion has been described at page6, hence there is no necessity for calling the original record from the trial Court. While rejecting the application, cogent reasons have been given by the court below. It appears that the appellant has mislead the court below by asking for time.
13. In the circumstances, no interference is required by this Court under Article 226 of the Constitution of India.
14. For the reasons stated above, the writ petition is dismissed. No order as to costs.
(Petition dismissed)
