Amir Hasan Vs. State of U.P. and ors. - Court Judgment

Sabhajeet Yadav, J.

1. This petition is directed against the judgment and order dated 8.11.2002, passed by Special Judge/Additional District Judge, Shahjahanpur in Reference No. 62 of 1997, Sabbir Hasan v. State of U.P. and Ors., whereby delay condonation application moved by the petitioner along with substitution application in pending reference has been rejected.

2. The reliefs sought in the writ petition rest on the assertions that the plot Nos. 76/1, 82/1, 89/1, 90, 74 situated in Village Tilhar Qasba, District Shahjahanpur belonging to Sabbir Hasan were acquired under the provisions of Land Acquisition Act, 1894, for which the award was given by the Collector on 14.1.1997. Feeling aggrieved against the aforesaid award Sabbir Hasan had moved application under Section 18 of the Land Acquisition Act requiring the Collector to make reference for enhancement of compensation, which was registered as L.A. Reference No. 62 of 1997 and was pending in the Court of 9th Additional District Judge, Shahjahanpur. During the pendency of reference Sabbir Hasan had died on 25.4.2001 as issueless. The petitioner being his brother and sole heir and legal representative had no knowledge or information about the pendency of the aforesaid reference. The petitioner is residing in Bombay since 1981 where he is engaged in hotel business and rarely visits to his permanent home town Tilhar, District Shahjahanpur. On 1.8.2002 one Gopal Babu who was mukhtare-aam and pairokar of Sabbir Hasan has met him and told about the pendency of aforesaid reference. On that day for the first time the petitioner came to know about it. Thereafter the petitioner filed application for substitution of his name in place of Sabbir Hasan on 2.8.2002 supported by an affidavit. The petitioner has also filed an application supported by an affidavit for condoning the delay under Section 5 of the Limitation Act in moving the aforesaid substitution application. The application and affidavit are on record as Annexures-4 and 5 of the writ petition. It is also stated that due to typing error in the affidavits, the date of death of Sabbir Hasan was wrongly typed as 16.1.2001 instead of 25.4.2001, therefore, an application for amendment alongwith affidavit dated 16.9.2002 was filed for correction of date of death incorrectly mentioned in the substitution application and delay condonation application. It is further stated that although the D.G.C. (Civil) has filed objection dated 24.9.2002 but neither any affidavit was filed in support thereof nor any counter-affidavit in opposition to the affidavits filed by the petitioner referred above was filed. Despite, thereof the court below vide impugned order dated 8.11.2002 has wrongly rejected the delay condonation application and substitution application of the petitioner on merits and oh the ground of maintainability also. Hence this petition.

3. Sri M.A. Qadeer, learned senior Counsel appearing for the petitioner has submitted that by virtue of the provisions of Section 53 of the Land Acquisition Act, 1894 the provisions of Code of Civil procedure are applicable to all proceedings before the Court under the Land Acquisition Act, unless they are inconsistent with any provisions contained under the said Act. He further submitted that the provisions of Order XXII of the Code of Civil Procedure which pertains to substitution of heirs and legal representatives of parties cannot be said to be in any manner inconsistent or contrary to any provisions of Land Acquisition Act, therefore, the same will apply with its full force. He further contended that any substitution application, if moved after expiry of period of limitation as prescribed under Article 120 of the Schedule appended to the Limitation Act, 1963, the delay condonation application under Section 5 of the Limitation Act can be moved alongwith such substitution application. Besides this, since the reference proceeding is a proceeding before the Court contemplated under the Land Acquisition Act, therefore, there can be no doubt about the applicability of the provisions of Section 5 of the Limitation Act in moving such substitution application in reference proceedings before the Court. Accordingly, the same can be admitted after the prescribed period of limitation, if the applicant satisfies the Court that he had sufficient cause for not making such application within prescribed period of limitation. Thus, learned Counsel for the petitioner has submitted that the impugned order passed by the court below is highly misconceived and erroneous, as such is not sustainable in the eye of law.

4. In view of the aforesaid contention of the learned Counsel for the petitioner, the question which arises for consideration before this Court is whether the provision of Order XXII, C.P.C. are applicable in reference proceeding pending before the Court and whether the provisions of the Limitation Act would also apply to such proceeding before the Court under the Land Acquisition Act

5. In order to answer the aforesaid questions, it is necessary to examine relevant provisions of the Land Acquisition Act, 1894 hereinafter referred to as 'the Act' and Section 5 of the Limitation Act. Section 3(d) of the Act defines the expression Court' and Section 53 of the Act provides that the provisions of the Code have been made applicable to the proceedings before the Court. Therefore, the said provisions are extracted as under :

3(d) the expression 'Court' means a principal civil court of original jurisdiction, unless the (appropriate Government] has appointed (as it is hereby empowered to do) a special judicial officer within any specified local limits to perform the functions of the Court under this Act;

53. Code of Civil Procedure to apply to proceedings before Court- Save insofar as they may be inconsistent with anything contained in this Act, the provisions of the [Code of Civil Procedure, 1908], shall apply to all proceedings before the Court under this Act.

6. At this juncture it would also be useful to extract the provisions of Section 5 of the Limitation Act, 1963, which empowers the Court to admit an appeal or application moved beyond prescribed period as under:

5. Extension of prescribed period in certain cases.- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this Section.

7. At this juncture, it is also necessary to point out that the question in issue has drawn attention of various High Courts and this Court also at several occasions, it would be useful to refer some of them, hereinafter.

8. In State of Madras v. Alameluthayammal : AIR1970Mad184 , a Division Bench of Madras High Court has held that in view of Section 53 of the Act the Court hearing reference under Section 18 of the Act has power to allow the amendment of the pleadings in reference to certain extent. The pertinent observations made in para 13 of the decision are extracted as under:

13. ...Section 53 of the Act provides that save insofar as they may be inconsistent with anything contained in the Act, the provisions of the Civil Procedure Code shall apply to all proceedings before the Court under the Act. The Court hearing a reference under Section 18 of the Act has power to allow an amendment of the pleadings in a reference. But the jurisdiction to allow such amendment cannot extend to increasing the claim to a figure beyond that which was claimed before the Collector, as it would be against the provisions of Section 25(1) of the Act. The appellants did not take any objection to the reference under Section 18 of the Act and the learned Government Pleader took exception only to the grant of compensation in excess of the amounts claimed in the counter statement of the claimants.

9. Similar view has been taken by Gujarat High Court in case of Alihusain Abbasbhai and Ors. v. Collector, Panch Mahals : AIR1967Guj118 , wherein it was held that by virtue of Section 53 of the Act the provisions of C.P.C. are applicable to all proceedings before Court under the Act unless such provisions in the Code are inconsistent with anything contained in Land Acquisition Act. The aforesaid observation was made in context of applicability of the provisions of Order XXII, Rule 3 of the Civil Procedure Code and it was held that there is nothing under the Act contrary to the aforesaid provisions of the Code. The pertinent observations made in paras 4 and 5 of the decision are extracted as under:

4. ...The reference becomes a proceeding before the Court as soon as it is received, taken on file and numbered and it is because it is a proceeding already initiated before the Court that the Court can fix a day for its hearing and give notice of such date to the various persons mentioned in Section 20. Moreover, it is difficult to appreciate how notice of a reference can go to the collector who is in the position of a defendant before the reference has commenced. Ordinarily notice of a proceeding would go to the opposite party after the proceeding has commenced before the Court: unless the proceeding is before the Court, there would be no question of giving notice of the proceeding by the Court to the opposite party. The contention of the petitioners that the proceeding in the reference had not commenced at the date of the death of Abbasbhai since no notice was served on him before his death is, therefore, clearly unsustainable and it must be concluded that the proceeding in the reference commenced before the Court as soon as the reference was received, taken on file and numbered and it was pending when Abbasbhai died.

5. The next question that arises is whether Order XXII, Rule 3 applied to the reference for it is only if that provision applied to the reference that the question of abatement could arise. Now Section 53 which Is reproduced above clearly declares that save in so far as they may be inconsistent with anything contained in the Act, the provisions of the Code of Civil Procedure shall apply to all proceedings before the Court under the Act and since a reference under Section 18 is a proceeding before the Court under the Act, Order XXII, Rule 3 must apply to the reference unless that provision is inconsistent with anything contained in the Act. The question which, therefore, calls for consideration is whether there is anything in the Act which is inconsistent with Order XXII, Rule 3.... It is, therefore, clear that the nature of a reference under Section 18 is not such that it must necessarily result in the making of an award by the Court and when I use the word 'award' I mean it in the sense of an award determining the amount of compensation for the land. The reference is not different from an ordinary civil proceeding in which the applicant who is in the position of a plaintiff objects to the amount of compensation offered in the award of the Collector and claims additional compensation. If the applicant falls to appear at the hearing of the reference, the reference must by force of Order IX, Rule 8 which is made applicable by Section 53 be dismissed for want of appearance like any other civil proceeding and in the same way if the applicant does not produce evidence in support of the objection, the reference must be dismissed just as any other civil proceeding would be dismissed for want of evidence in support of the claim. When the reference is dismissed the award of the Collector stands and the applicant can always accept the offer contained in such award. Now if the reference can be dismissed for default of appearance of the applicant or for want of evidence before the Court, there is no reason why Order XXII, Rule 3 should not be applicable to the reference. If Order XXII, Rule 3 does not apply to the reference, what is to happen when the applicant dies during the pendency of the reference? The right to claim additional compensation which the applicant is agitating in the reference would certainly survive to his heirs from making an application to the Court for bringing themselves on record in place of the applicant. It is difficult to see why instead of permitting the heirs to follow the ordinary and simple procedure of applying to the Court for bringing themselves on record In place of the applicant and proceeding with the reference, the law should insist that the Collector who is the opposite party must supply the names of the heirs to the Court and the Court should issue notices to heirs as persons interested in the objection and then proceed with the reference. There is clearly nothing in the nature of the reference which is inconsistent with Order XXII. Rule 3 Sub-rule (1) and the provision contained in Order XXII, Rule 3 Sub-rule (1) can be applied to the reference without causing any anomaly or inconsistency. Order XXII, Rule 3 Sub-rule (2) provides for abatement of the proceeding if no application for bringing the heirs on record is made within the time limited by law and the question may, therefore, well arise whether there is any time limited by law for the making of an application to bring the heirs of a deceased applicant on record in a pending reference. If there is a time prescribed by law for making such application and such application is not made within the time so prescribed, the reference would abate leaving the award of the Collector unaffected. But if no time for making such application is prescribed by law, the application can obviously be made at any time and there would be no abatement of the reference and in that event as soon as the application is made, the Court would bring the heirs of the deceased applicant on record and proceed with the reference. Order XXII, Rule 3 Sub-rule (2) is also, therefore, not in any way inconsistent with the nature of the reference. The provision enacted in both the Sub-rules of Order XXII, Rule 3 can be made applicable without creating any Inconsistency or disharmony and it must, therefore, be concluded that Order XXII, Rule 3 applies to a reference under Section 18.

10. In Smt. Katori Devi and Ors. v. Collector, Aligarh : AIR1982All394 , a Division Bench of this Court has held that while disposing of a reference under Section 18 of the Act the District Judge functions as Court. The provisions of C.P.C. have been specifically made applicable to the proceeding before the Court by Section 53 Insofar as they are not inconsistent with anything contained in the Land Acquisition Act. While dealing with the applicability of the provisions of Order IX, Rule 8, C.P.C. it was held that there.is no provision in Land Acquisition Act which may be inconsistent with the provisions of Order IX. C.P.C., therefore, Order IX, C.P.C. applies to the proceedings before the District Judge on a reference made under Section 18 of the Act and as such District Judge has power to dismiss the reference for default of appearance by the claimant and consequently when the reference is so dismissed, an application under Order IX, Rule 9 to set aside the order, of dismissal would be maintainable. For ready reference the pertinent observations made by the Division Bench of this Court in paras 6, 7 and 11 of the decision are extracted as under:

6. It is thus evident that the learned District Judge functions as a Court while disposing of a reference under Section 18 of the Act. The provisions of the Civil P.C. have specifically been made applicable to such proceedings by Section 53 of the Act. Ex facie the provisions of Order IX, C.P.C. will be applicable to these proceedings. We have gone through the provisions of the L.A. Act and we do not find any provision anywhere which may be inconsistent with the provisions of Order IX, C.P.C.

7. With due respect to the Hon'ble Court, we are unable to subscribe to the views expressed by the Karnataka High Court in the aforesaid decision. Section 26 of the Act comes into operation only when the reference is to be decided on merits after considering the evidence led by the parties and the provisions of Section 23 of the Act. Section 26 of the Act does not say anything which may be inconsistent with the Court's power under Order IX, Rule 8, C.P.C. to dismiss a reference for default of appearance by the claimants. Since there is nothing inherently inconsistent in Section 26 of the Act with the existence of Order IX, Rule 8, C.P.C. we fail to see on what principle can the provisions of Order IX, Rule 8, C.P.C. be excluded when Section 53 of the Act specifically makes them applicable.

11. We are in respectful agreement with the views expressed by the Madras, Madhya Pradesh and Gujarat High Courts. In our opinion the provisions of Order IX, C.P.C. are applicable to proceedings on a reference under Section 18 of the L.A. Act. We are further of the opinion that there is nothing in the L.A. Act which may be inconsistent with the provisions of Order IX, C.P.C.

11. Somewhat identical question as involved in this case has come for consideration before Full Bench of Delhi High Court in Mst. Ram Piari and Ors. v. Union of India and Ors. : AIR1978Delhi129 , wherein after dealing in detail about the scheme of the provisions of the Act in paras 19, 20 and 21 of the decision Full Bench has held as under:

'19. As noted earlier Section 21 of the Act restricts the scope of the enquiry to a consideration of the interests of the persons at whose behest the Collector makes the reference on their applying to the Collector to make the reference. That being so, it is incumbent on them to pursue their claim as provided under the Act. In the event of the death of a person at whose instance the reference was made the right to continue the reference survives to his legal representatives. It is for the legal representatives if they choose to pursue the reference to apply to the Court for being brought on the record to enable them to prosecute the reference. No obligation is cast on the Collector to furnish the names and addresses of the legal representatives of a deceased claimant to keep the reference alive. The reference is to be answered and an award given by the Court only on evidence being produced before it by the claimant who challenges the award given by the Collector.' If no evidence is led the reference has to be declined. The provisions of the Act do not cast any obligation on the Collector to justify his award. It is only when a claimant produces evidence before the Court and succeeds in showing that the award made by the Collector is inadequate that the Collector is to lead evidence .in rebuttal. The Act itself does not prescribe the procedure applicable to the proceedings before the Court while hearing a reference application. Section 53 of the Act, however, makes the provisions of the Code applicable to these proceedings. Accordingly the procedure laid down in the Code has to be followed by the Court in deciding a reference application.

20. The procedure laid down in the Code being applicable to these proceedings, it cannot be urged that the applicability of the provisions of Order IX and Order XXII of the Code are not attracted to the proceedings in the Court.

21. An application under Order XXII requiring the legal representatives to be brought on the record has to be moved within the period prescribed for moving such application. In case the application is not moved within time the reference would abate and the Court is not obliged to answer such a reference. It is no doubt true that a reference application is not a suit, however because of the applicability of the procedure prescribed in the Code to the proceedings before the Court in such applications, the proceedings before the Court partake the nature of a suit. During the proceedings before the Court in the reference application the claimants will partake the status of plaintiffs while the non-claimants and Collector would occupy the position of defendants.

12. While considering the applicability of provisions of Order XXII, C.P.C. and those of Limitation Act before the reference court made under Section 30/31 of the Land Acquisition Act a Full Bench of Delhi High Court in Chander and Ors. v. Mauji and Ors. : AIR1989Delhi97 , in para 16 of the decision has observed as under:

16. Whether the proceedings have been initiated on a reference under Section 18 or under Section 30, the dispute to be settled is as to the persons to whom the compensation is payable or the apportionment of the compensation among the persons interested. The conflicting claims to the compensation money is the dispute which has been referred either under Section 18 or under Section 30 of the Act. The lis between the parties is identical whether the proceedings are under Section 18 or under Section 30. An adjudication on the title to receive compensation on a reference under Section 18 stands on the same footing as an adjudication on a reference under Section 30 or for that matter on a deposit under Section 31(2) of the Act. The scheme of the Act is that the Collector has to pay compensation to the rightful owners about whom he gives his award. The disputes could be settled either on a reference under Section 18 or on a reference under Section 30 to enable the Collector to disburse the compensation to the rightful owners. All questions relating to the dispute as to title to compensation, whether on a reference under Section 18 or on a reference under Section 30, traverse the same field, we can see no fundamental difference in the proceedings under Section 18 and Section 30/31 of the Act. The two operate in the same arena. The procedure before the Court on a reference under Section 30 would also be governed by the provisions contained in the Code of Civil Procedure. Section 30 does not contain any provision expressly or by necessary implication that the provisions of the Code of Civil Procedure are not applicable. The Full Bench in Ram Piari's case AIR 1978 Del 129, said that a reference under Section 18 of the Act partakes the nature of a suit. Similarly any dispute as to the apportionment of compensation or as to the persons to whom the same is payable on a reference, whether under Section 18 or under Section 30, is really in the nature of an inter-pleader suit initiated by the Collector either on a petition or suo motu. The persons interested are directed to establish their title to the acquired land. There is no reason for not making the provisions of the Code of Civil Procedure, Order XXII and for that matter the limitation contained therein, applicable to the proceedings under Section 30 for the same reasons as are applicable to the proceedings under Section 18 of the Act.

13. In Gorakhpur Development Authority, Gorakhpur v. District Judge, Gorakhpur and Ors. : AIR1991All241 , & Division Bench of this Court has, however, held that Order I, Rule 10, C.P.C. has no application to reference proceeding under Section 18 of the Land Acquisition Act, its applicability is excluded by the context of the Act, i.e., by necessary implication. The pertinent observations made by Hon'ble Mr. Justice B.P. Jeevan Reddy (as he then was the Chief Justice of this Court) in para 17 of the decision are as under:

17. ...Accordingly, and for the reasons given hereinbefore, we hold that Order I, Rule 10, C.P.C. has no application to reference proceedings under Section 18 of the Land Acquisition Act. Its application is excluded by the context of the Act, that is, by necessary implication. A beneficiary (local authority or company for whose benefit the land is being acquired and who is ultimately liable to bear the burden of paying the compensation) cannot apply for impleading, nor can it be impleaded as a party-respondent under Order I, Rule 10, C.P.C. read with Section 53 of the Land Acquisition Act. Its right is only the one recognised by Section 50(2) of the Act. It can appear in such a reference and adduce evidence in support of its case and also to contradict the evidence produced by the claimants. It can also cross-examine the witnesses produced by the claimants. It cannot either ask for a reference under Section 18, nor can it file an appeal against the judgment and award of the civil court as a matter of right under Section 54 of the Act. It can file such an appeal with the leave of the Court and, as observed hereinbefore see F.B. decision of this Court in Gaurdham 1980 All CJ 345 (supra). Such leave should, normally, be granted to a beneficiary, who has appeared and participated in the reference proceedings. Even where it did not so appear and participate, it may well be entitled to apply for such leave and the Court should consider such a request sympathetically for the simple reason that the ultimate burden of paying the compensation falls upon such beneficiary.

14. Thus, in view of statement of law enunciated hereinbefore, there can be no scope for doubt to hold that by virtue of Section 53 of the Act the provisions of C.P.C. are made applicable in proceeding before the reference court constituted under the Act, so far as they are not inconsistent or contrary to any provisions of the Act. In other words, the provisions of C.P.C. cannot be held applicable if such provisions are excluded by necessary implication in context of the provisions of the Act or if they are found contrary or inconsistent with any provisions of the Act or application of such provisions creates anomalous situation or leads to an absurdity or creates disharmony with the provisions of the Act. Therefore, before applying the provisions of Civil Procedure Code in a reference proceeding before Court it has to be examined as to whether the said provision of Code in any way inconsistent or contrary to the provisions of the Act or as to whether the applicability of Such provisions of Code has been excluded in context of provisions of the Act by necessary implication or the applicability of any provision of the Code causes any anomaly or disharmony with any provisions of the Act. If it is found that the provision of Code has been excluded in context of the provisions of the Act by necessary implication or the provisions of Code are in any way inconsistent or contrary to the provisions of the Act or its application creates anomalous situation or leads to an absurdity, in that eventuality the applicability of such provisions of the Code should be taken to be excluded, otherwise it shall apply to the reference proceeding before the Court, accordingly any broad proposition with regard to the universal application of the provisions of the Code cannot be laid down and the Court has to examine every individual case of applicability of the provisions of the Code in context of the provisions of the Act.

15. Now before proceeding further it is also necessary to make it clear that the jurisdiction of the Court while dealing with the reference cases under the Act is of special nature. It has no original jurisdiction like a civil court dealing with civil suit in reference cases, wherein the civil court has jurisdiction to try all the suit of civil nature unless such suits are expressly barred by statute or impliedly barred by necessary implication. However, in reference cases before the Court its jurisdiction is limited and is circumscribed by the reference made to it either under Section 18 or 30 of the Act. Having regard to the statutory scheme underlying in the aforesaid provisions of the Act, the Court functioning under the Act being a Tribunal of special jurisdiction, can assume its jurisdiction only where a valid reference is made to it either under the provisions of Section 18 or 30 of the Act and the requisite conditions for making such reference are satisfied before the Collector while making such reference to the Court. If the requisite conditions while making reference are not satisfied, the Court cannot assume its jurisdiction if the reference is not validly made to it by the Collector under the Act, as held by Hon'ble Apex Court in Mohd. Hansuddin v. State of Maharashtra : [1979]2SCR265 . In other words before the Tribunal assumes jurisdiction in a matter, it must be satisfied that the conditions requisite for its acquiring seisin of that matter have in fact arisen. Similar view has also been taken by Hon'ble Apex Court in Prayag Upniwas Awas Nirman Sahkari Samiti Ltd. v. Allahabad Vikas Pradhikaran and Ors. : [2003]3SCR567 , wherein the Hon'ble Apex Court in para 7 of the decision has observed that the reference court gets jurisdiction only if the matter is referred to it under Section 18 or 30 of the Act by Land Acquisition Officer and that civil court has got jurisdiction and authority only to decide the objections referred to it. The reference court cannot enlarge the scope of jurisdiction or decides the matter which are not referred to it. Therefore, while examining the applicability of the provisions of Code of Civil Procedure in reference proceeding before the Court, the context of the provisions of Act has to be examined scrupulously and strictly in individual cases having regard to the nature of jurisdiction conferred upon the reference court and no broad proposition having universal application of the provisions of the Code can be laid down in this regard.

16. It is no doubt true that a reference application is not a suit, but because of applicability of procedure prescribed in the Code of Civil Procedure before the Court, in such applications the proceedings before the Court partake the nature of suit. During the proceedings before the Court in the reference application, the claimants will partake the status of plaintiff while the non-claimants and Collector would occupy the position of defendant. Having regard to the scheme of the Act, I do not find any provision therein which is inconsistent or contrary to the provisions of Order XXII of the Code of Civil Procedure which deals with regard to bringing the legal representatives and heirs of deceased party on record of the Court. Therefore, in my opinion, the aforesaid provisions of Code of Civil Procedure does not appear to be excluded by necessary implication in context of the provisions of the Act. In such situation, there can be no scope for doubt to hold that the provisions of Order XXII of the Code of Civil Procedure have full application in the reference proceeding pending before the Court. Accordingly, an application under Order XXII, C.P.C. requiring the legal representatives to be brought on record has to be moved within the period prescribed for moving such application. In case, the application is not moved within time prescribed, the reference would be abated and dismissed and the Court would not be obliged to answer such reference.

17. Once it is held that the provisions of Order XXII, C.P.C. are applicable for bringing the legal representatives and heirs of claimant on record before the Court in reference proceeding, the applicability of provisions of the Limitation Act can also not be doubted atleast for two reasons firstly it is proceeding before the Court where the provisions of Section 5 of the Limitation Act have, full application and secondly under the provisions of Order XXII, Rule 3 of the C.P.C. if the application for substitution of legal representative and heir of deceased plaintiffs or appellants is not moved within prescribed period, the proceeding shall stand abated. For moving such application although no period of limitation has been provided under Order XXII of the C.P.C. but under Article 120 of Schedule appended to the Limitation Act, the period of limitation prescribed is 90 days from the date of death of plaintiff, appellant, defendant or respondent, as the case may be and under Article 121 of the Schedule 60 days' period of limitation has been prescribed for setting aside the order of abatement from the date of abatement. And by virtue of Order XXII, Rule 9(2) and (3) of C.P.C. the provisions of Section 5 of the Limitation Act have also been made applicable, therefore, if the applicant satisfies the Court that he had sufficient cause for not making the substitution application within such period prescribed under the provisions of the Limitation Act, the Court is fully empowered to set aside the abatement order and admit such application by extending the prescribed period for limitation in moving such application under Order XXIL C.P.C.

18. Now coming to the fact of the case, it appears that the impugned order was passed by the court below/reference court rejecting the delay condonation application of petitioner moved alongwith substitution application under Order XXII, Rule 3 for bringing the legal representative and heir of the claimant Sabbir Hasan on record on the ground that the same was not maintainable before the Court, in my opinion, view taken by the court below is contrary to the view taken by me, therefore, cannot be sustained. The rejection of delay condonation application of the petitioner moved alongwith substitution application on merits too appears to be erroneous. I am of the considered opinion that liberal view ought to have been taken by the court below while considering the cause shown by the petitioner in moving such belated application. The specific case taken by the petitioner was that he was residing in Bombay in connection of his Hotel business and rarely visits his home town at Tilhar in district Shahjahanpur and he was not aware of the proceeding pending in court below, therefore, in absence of rebuttal of his statement made in affidavit on oath and in absence of contrary material brought on record, the correctness of his statement could not be doubted by the court below. In my opinion, the view taken contrary to it cannot be sustained. In given facts and circumstances of the case, the cause shown in moving the belated substitution application by the petitioner appears to be sufficient and, therefore, the delay caused in moving such application ought to have been condoned. Accordingly, the delay caused in moving substitution application by the petitioner is hereby condoned. The impugned order dated 8.11.2002 passed by the court below is hereby quashed. The court below is directed to decide the substitution application moved by the petitioner on merit by restoring the aforesaid reference proceeding on file.

19. Before parting with the judgment, it is necessary to point out that vide impugned order dated 8.11.2002, passed by the reference court, since the delay condonation application moved alongwith the substitution application of the petitioner has been rejected, therefore, it shall be tantamounted to be an order under Rule 9 of Order XXII, C.P.C. refusing to set aside the abatement or dismissal of a suit which is appealable under Order XLIII, Rule 1 (k) of the Code. But since I have heard and decided the case on merit as indicated hereinbefore, as the writ petition is pending since the year 2003, therefore, I do not think it proper either to reject the petition on the ground of alternative remedy or to direct the office to register and convert the same as F.A.F.O. at this stage. However, the same should be treated to be decided as F.A.F.O.

In view of the aforesaid observation and direction, writ petition succeeds and is allowed to the extent indicated hereinbefore.