Shafiullah Khan Smt.Subhagyabvati Devi v. Revisionist(s) .....Opposite Party(s) Counsel for Revisionist(s) : D.K.Khare, M.A. Khan, Mohd.Adil Khan, Counsel for

repairs had taken place. Accordingly, the defendant revisionist was entitled to the defence in terms of the U.P. Act No.13 of 1972.

5. The suit was contested. However, at the stage of evidence of defentants, the defendant sought an adjournment for moving an application for transfer. However, the Court concerned rejected the same and by means of its judgment dated 11.04.1988 decreed the suit.

6. The tenant being aggrieved against the judgment of the SCC Court dated 11.04.1988 preferred the instant revision, which was registered as Civil Revision No.54 of 1988. While entertaining the instant revision, an interim order was granted staying the eviction of the revisionist subject to the deposit of the entire decreetal amount. During the pendency of this revision Smt. Saubhagwati Devi the original landlord/respondent died on

20.12.1989.

7. Before the revision could be heard on merits, at this stage another controversy arose which is hotly contested by the parties. As per the revisionist upon the death of Smt. Saubhagwati Devi, the revisionist 3 CLRE No. 54 of 1988 moved an application well within time seeking substitution of the heirs of Smt. Saubhagwati Devi. The said application (referred to as original application) is said to have been filed on 15.03.1990. It is the case of the revisionist that later the counsel for the revisionist inspected the records of the revision and found that the original application for substitution moved on 15.03.1980 was not on record. In this backdrop, the revisionist filed another application (referred to as subsequent application) on

22.07.1994, however, this subsequent application was not accompanied by any application seeking condonation of delay or setting aside abatement.

8. At this stage, it will also be relevant to notice that a Co-ordinate Bench of this Court had directed the revisionist to file a supplementary-affidavit indicating the number of the original application which was moved by the revisionist and also file an application for seeking condonation of delay and setting aside abatement.

9. The said subsequent application came to be considered by the Court and vide its order dated 18.02.2000 it was dismissed and consequently the Court abated the revision.

10. While dismissing the subsequent application the Court noticed that since the revisionist was aware that Smt. Saubhagwati Devi had died and though subsequent application for substitution was moved but without an application for condonation of delay and setting aside abatement though after five years the application for condonation of delay and setting aside abatement was moved but cause could not be explained, hence the subsequent application was dismissed.

11. Upon dismissal of the revision as abated, the revisionist filed a review 4 CLRE No. 54 of 1988 of the order dated 18.02.2000 and this review came to be registered as Review Petition No.52 of 2000 and is connected with the Civil Revision No.54 of 1988 this is how the two petitions were filed.

12. The reason why the two petition i.e. the review and revision were heard together is that according to the revisionist the revision is to be heard on merits and as per the respondent, once the revision had abated and the revisionist filed a review, which was dismissed but by resorting to unethical practice, the order allowing the review and getting the order by which revision was abated, recalled simultaneously and behind the back of the respondent is unsustainable. Hence the respondent filed an application C.M.No.91970 of 2008 for recall.

13. The Court has heard the learned counsel for the parties both on the application aforesaid and merits of the revision as well.

14. Shri Mohd. Arif Khan, learned Senior Counsel alongwith Shri Mohammad Aslam Khan for the revisionist has put forward a two fold submission:- (14.1) An application for substitution to bring on record the heirs of deceased Smt. Saubhagwati Devi was moved on 15.03.1990. This application was well within time. However, on account of some inadvertence, the same was not found on the record. In order to avoid any controversy, the revisionist had filed another application on 22.07.1994 stating therein that the counsel for the revisionist had made inspection and it revealed that the earlier application for substitution filed on 15.03.1990 was not on record, hence by annexing a copy of the earlier application, the subsequent application was moved on 22.07.1994. 5 CLRE No. 54 of 1988 (14.2) It was urged that though the Court had required the revisionist to inform, the C.M.Application number of the original application and also directed to file an application for condonation of delay and setting aside abatement relating to the subsequent application. However, as per the office report dated 19.05.2000, it indicated that some application bearing No.267 was found in the application institution register but it related to Civil Revision No.54 of 1989 and not the instant Civil Revision No.54 of

1988. The parties of Civil Revision No.54 of 1989 were different and the said revision was filed by 'Kripa Cotton Mills' which had already been dismissed on 22.04.1989. (14.3) Relying upon the aforesaid office report, it was urged that the original application filed by the present revisionist could not be traced but at least it was clear that the revisionist through his earlier counsel had moved an application on 15.03.2019 bearing No.267 of 1990. In such circumstances, the application for substitution should have been allowed but the court taking a pedantic view dismissed the said application which led the revisionist to file the review. (14.4) It was, thus, submitted that the application for review should have been allowed, however, instead the review came to be dismissed on

08.01.2001. Whereafter an application for recall was moved which came to be allowed on 04.02.2005. In the aforesaid backdrop, the application for substitution could be formally allowed and the revision be heard on merits. (14.5) The second submission of the learned Senior Counsel is that no adequate opportunity of hearing was granted by the SCC Court and it has decreed the suit practically ex-parte. 6 CLRE No. 54 of 1988 (14.6) It was urged that an application for adjournment was moved which was rejected and the court concerned should have proceeded in terms of the explanation appended to Order 17 Rule 2 CPC instead it proceeded under Order 17 Rule 3 CPC which was erroneous hence the revision on this ground alone, deserves to be allowed. (14.7) It is urged that the matter deserves to be remitted to the SCC Court with a direction to decide the matter after affording an opportunity to the revisionist to lead his evidence and some time frame be fixed by the Court and the revisionist undertakes to co-operate in early hearing of the suit.

15. Shri G.C. Sinha, learned counsel for the respondent landlord has vehemently opposed the aforesaid submissions. According to the counsel respondent, revision has resorted fraud and misrepresentation. (15.1). It was pointed out that as per the case of the revisionist, upon the death of Smt. Saubhagwati Devi, an application for substitution was moved well in time, however, it could not be traced nor its details could be given by the revisionist. (15.2). The alleged subsequent application bearing No.267-M of 1994, was moved without any application for setting aside abatement and condonation of delay. It is urged that this is an admitted fact that the subsequent application was moved on 22.07.1994 but it did not have any explanation for condoning the delay nor there was application seeking setting aside abatement. (15.3). It was also urged that, later, the Court noticing the aforesaid fact dismissed the application vide order dated 18.02.2000. Against that 7 CLRE No. 54 of 1988 dismissal order the revisionist preferred a review which was dismissed on

08.01.2001. (15.4). It is urged that an alleged application under section 151 CPC was moved by the revisionist bearing No.23-M of 2001 whereby the order dated 08.01.2001 and the earlier order dated 18.02.2000 were sought to be recalled. However, it is the case of the respondent that the counsel for the respondent was not served with a copy of the said application. (15.5). It was submitted by Shri Sinha that the said case was not listed before the Court. However, by resorting to unethical means, the case was got listed and behind the back of the respondent an order was got passed on 04.02.2005 whereby earlier orders dated 18.02.2000 and 08.01.2001 both were recalled, which could not have been done. (15.6). It was also submitted that an application for recall, which should have been filed in the review petition but it was filed in the revision, which already had been dismissed as abated vide order dated 18.02.2000. Thus, the order itself passed on 04.02.2005 was bad in the eyes of law and this prompted the revisionist to file an application bearing No.91970 of 2008 bringing all the aforesaid facts to the notice of the Court and this application be decided, first. (15.7). It was urged that for the aforesaid reason, the revision as well as the review both are liable to be dismissed with heavy costs as the revisionist is guilty of sharp practice. (15.8). Shri Sinha further submitted that in so far as the merits of the revision is concerned, the revisionist was granted ample opportunity before the trial court to lead evidence. However, he only wanted to delay 8 CLRE No. 54 of 1988 the proceedings and in such circumstances, the trial court on 11.04.1988 decreed the suit for eviction and arrears of rent. It recorded a clear finding that the revisionist delayed the proceedings and all efforts were made to some how keep the matter pending. Now more than 40 years have lapsed and the landlord has not been able to get justice and in such circumstances and for all the reasons as mentioned above the review and revision both deserve to be dismissed with heavy and exemplary costs.

16. Before dealing with the submissions of the learned Counsel for the parties on merits of the revision, it will be appropriate to first consider whether orders dated 04.02.2005, 08.01.2001 and 18.02.2000 passed by the Co-ordinate Bench in the revision and the review in the given circumstances was justified or not, especially in light of the averments made by the respondent in his Application No.91970 of 2008. C.M.Application No.91970 of 2008

17. This Court is of the view that C.M.Application No.91970 of 2008 should be considered first, because if the application is allowed then the proceedings would stand dismissed and if rejected only then the revision can be heard on merits.

18. Evidently, it is an undisputed fact that during the pendency of the revision Smt. Saubhagwati Devi expired on 20.12.1989. It is the case of the revisionist that he had moved an application for substitution bearing No.267-M of 1990 on 15.03.1990. This fact is gathered from the perusal of the copy of the alleged original application, which was annexed with the subsequent application moved on 22.07.1994. There is a noting, that the original application was moved on 17.03.1990, while the subsequent application was moved on 22.07.1994. 9 CLRE No. 54 of 1988

19. Significantly, this fact of filing of the original application is disputed by the respondent. From the perusal of the contents of the said subsequent application wherein it was averred by the revisionist, that his erstwhile counsel had made an inspection of the record and then it revealed that the original application dated 15.03.1990 was not on record, which prompted the revisionist to file the subsequent application.

20. This Court on perusal of the said subsequent application, finds that in the affidavit accompanying the said subsequent application dated

22.07.1994, it lacks relevant particular, as under:- (i) Relating to the date on which the said inspection was made. (ii) It also does not indicate any reason for not moving any application for condoning the delay or setting aside abatement, despite knowing the fact that there was no record of the filing of the original application and this very fact of moving the original application was being denied vehemently by the respondent, nor in the subsequent application any prayer to the said effect was made, though it was moved on 22.07.1994 i.e. after more than 4 years i.e. from 15.03.1990. (iii) The record indicates that the revisionist was granted time to file a supplementary-affidavit to indicate the number of the earlier application dated 15.03.1990 and was also directed to file an application seeking condonation of delay and setting aside abatement. However, only on

09.09.1999 an application for condonation of delay and setting aside abatement was moved i.e. after five years from the date of moving the subsequent application. (iv) The record further indicates that on 27.04.2000 (in review petition 10 CLRE No. 54 of 1988 No.52 of 2000 as by then the revision had abated vide an order dated

18.01.2000 passed in revision) an order-sheet was drawn whereby the office was directed to trace out C.M.A.No.267-M of 1990. (v) The office report dated 19.05.2000, available on the record of the review petition No.52 of 2000, states, that as per the photocopy of the application institution register, at page-1 dated 15.03.1990, it shows that at serial no.267 an application for substitution was moved in Civil Revision No.54 of 1989. However, at page-2 of the progress register of civil revision for the year 1989 maintained by the office indicates that the Civil Revision No.54 of 1989 was already dismissed on 22.04.1989 i.e. eleven months prior from the alleged date of the filing of the original application bearing No.267 of 1990. Moreover, the said civil revision no. 54 of 1989 did not relate to the instant parties rather it was filed by M/s Kirpa Cotton Mills. (vi) The record further indicates that the revisional court on 18.02.2000 dismissed the revision as abated as the application for seeking condonation of delay and setting aside abatement was not moved with the subsequent application for substitution, though at a later stage, on

09.09.1999 the application for condonation of delay and setting aside abatement was filed, after five years and the reason could not be justified. (vii) The order dated 18.02.2000 passed by the Co-ordinate Bench is being reproduced hereinafter for ready reference:- "Heard application application for substitution. learned counsel of for condonation of delay the applicant on in moving It appears that the applicant stated that he had made an application on 17th March, 1990 for substitution in place of deceased-opposite party who died on 20th December, 1989. 11 CLRE No. 54 of 1988 The application for substitution was made only on 22nd July, 1994 without making the mention of the number of the application which was moved on 17.03.90 for substitution. Alongwith the said application for substitution, no application for condonation of delay or for that matter for setting aside abatement had been moved. It was only on 9th September, 1999 that an application for condonation of delay and another application for setting aside abatement were moved. In the affidavit accompanying the said application for condonation of delay, no mention of the number of the substitution application allegedly moved was given. The assertion made on behalf of the revisionist that he had made an application for substitution in place of deceased-opposite party on 17th March, 1990, goes to show that the revisionist was aware of the death of the opposite party and yet did not make an application for substitution prior to 22.07.1994. The application application for substitution, therefore, has no legs to stand and there is no good ground made out for condoning the delay. The application is accordingly rejected. for condonation of delay in moving Since the application for condonation of delay has been rejected, the application for substitution, C.M.Application No.237 (M) of 1994 which is barred by time, is hereby for setting aside the application rejected. Similarly, abatement is also rejected. The revision stands abated in default of the revisionist in moving the application for substitution in place of deceased- opposite party. The stay order is vacated." (viii) The record further reveals that the revisionist filed a review application on 22.02.2000. While the said review was pending, an application was moved by the respondent seeking vacation of the interim order passed in the review application. (ix) It was brought to the notice of the review court, by an application seeking setting aside of the interim order passed in review, that the review itself was filed against a dead person, namely, Smt. Saubhagwati Devi, as shall be evident from the bare perusal of the memo of review. (x) Even though in the first paragraph of the review application, it was mentioned that Smt. Saubhagwati Devi had died but there is no explanation as to why the dead person was made a party and not her legal 12 CLRE No. 54 of 1988 heirs. (xi) The revisionist thereafter move an application bearing No.767(M) of 2000 indicating that the sole revisionist/review petitioner Shafi-Ullah Khan had expired on 22.09.2000 and his heirs may be brought on record. What is significant to note is the fact, that the said application which ought to have been filed in the review, was placed on record of the civil revision. (xii) This application No.767 of 2000 came to be dismissed by means of order dated 08.01.2001. Once the said application was rejected the effect would be that there were no heirs of the revisionist or the landlord on record, consequently the review petition also ought to have been dismissed as abated. (xiii) It is in the aforesaid backdrop that an application bearing No.23 (M) of 2001 was filed by the revisionist but it was referable to the review petition but again the same was not placed on the record of the review rather it was placed on the record of the civil revision. (xiv) Even in the array of the parties of this particular application, which was moved by the heirs of Shafi-Ullah Khan the legal heirs of Smt. Saubhagwati Devi were not brought on record by the review petitioner despite knowing the fact Smt. Saubhagwati Devi had expired on

20.12.1989. (xv) This assumes significance for the reason that already there was a hot contest regarding the substitution of the heirs of Smt. Saubhagwati Devi in the revision, which abated and even while filing the review, the heirs were not brought on record. 13 CLRE No. 54 of 1988

21. Now in this backdrop, a contention was raised that the said application for recall which was filed in review and placed on the revision, came to be placed before the Court on 04.02.2005 and it was allowed though it was the specific case of the respondent that the said case was not listed before the Court on 04.02.2005 and by unethical means the said order was got passed. This is contested by the revisionist to state that the application was served on the counsel for the respondent.

22. The respondent, on the other hand, moved an application No.91970 of 2008 in the review, for recalling of the order dated 04.02.2005. In the said application, it was urged that the order dated 04.02.2005 was got passed on the application under section 151 CPC which was placed on the revision and not on the review, consequently the order was bad.

23. On the basis of facts, which emerge from the record, the Court finds that the revision was dismissed on 18.02.2000 as abated. An application for review was filed on 22.02.2000, seeking the review of the order dated

18.02.2000.

24. The review was filed against a dead person, as Smt. Saubhagwati Devi had already expired and she was impleaded as the sole respondent in review despite the fact of Smt. Saubhagwati Devi,s death was known to the revisionist, who was also the review petitioner.

25. The learned Senior Counsel could not give any explanation as to under what circumstances Smt. Saubhagwati Devi was impleaded as the sole respondent in the review petition filed on 22.02.2000 despite knowing the fact that she had died way back on 20.12.1989 i.e. almost 11 years ago from the date of filing of the review. 14 CLRE No. 54 of 1988

26. That being so, however, the fact remains that no order dated

04.02.2005 could have been passed against a dead person in review. It is also clear from the record that even till date no formal application was moved in the review petition to bring on record the heirs of deceased, Smt. Saubhagwati Devi.

27. The original review petitioner Shafi-Ullah Khan died and an application was moved by the revisionist which is bearing paper No.767- M of 2000. However, the said application though mentioned that it relates to the review but it was also filed in the revision. The said application bearing No.767(M) of 2000 was rejected by the Court on 08.01.2001. The moment the said order was passed, even though on the application relatable to the review as by then the revision had not been restored and it was only the review which was pending and in such circumstances, if the order dated 08.01.2001 was passed on the review then apparently the review also stood dismissed.

28. Once this position in law becomes clear then as a matter of fact the application moved by the revisionist, bearing No.23-M of 2001 under Section 151 CPC, seeking recall of order dated 18.02.2000 and

08.01.2001, could not be prayed for, together as one related to an order by which the revision abated and the other by which the review was dismissed.

29. As noticed above, this application under Section 151 CPC though was relatable to the review, but it was filed in civil revision, which at the cost for repetition, could not be considered as by then the review as well as the revision both were dismissed. Without first getting the review restored and allowed on merits the revision could not have been considered. 15 CLRE No. 54 of 1988

30. The record further indicates that on the said application bearing No.23(M) of 2001, a Co-ordinate Bench of this Court on 04.02.2005 allowed the said application. As a necessary corollary both the order dated

08.01.2001 and 18.02.2000 were recalled.

31. The order dated 04.02.2005 passed by the Co-ordinate Bench is relevant to be noticed and it reads as under:- "This is an application for recall of the order dated 18.02.2000 and 08.012001. The application is supported by the affidavit of Basharat Ullah Khan the applicant no.2. Reasons given in the affidavit seems to be sufficient. The application is allowed and the both the orders are recalled. List the case in April, 2005 for disposal of the substitution matter."

32. From the perusal of the aforesaid quoted order, it would indicate that once the two orders were recalled, there was no reason to fix the matter for disposed of substitution matter. If appears that full facts were not brought to the notice of the Court which led to passing of the aforesaid order.

33. At this juncture, it will be relevant to consider the opposition raised by the counsel for the respondent, to state that they did not receive the copy of the said application nor the case was listed before the Court on

04.02.2005 and in the aforesaid circumstances, the said order is an outcome of unethical means and cannot be sustained. This is controverted by the counsel for the revisionist stating that the copy of the said applications were received by the then counsel for the respondent and in case after receiving the copies, if the counsel did not turn up at the time of call of the case, the revisionist cannot be blamed for it.

34. In case if the aforesaid submissions are noticed and seen in context of 16 CLRE No. 54 of 1988 the record, it would reveal that the revisionist/review petitioner had moved an application titled "Application for dismissal of application for abatement/dismissal of the review petition" C.M.A. No.20145 of 2008 referable to the review petition, is placed on record of the revision. The said application is accompanied by an affidavit of Basharat Ullah Khan and alongwith the said affidavit Annexures No.C.A-1 and C.A.2 have been filed. The context in which the said two annexures have been filed, are relatable to paragraph-5 of the affidavit filed with the Application No.20145 of 2008 and paragraph-5 of the same is being reproduced hereinafter for ready reference:- "That thereupon the revisionist made an application for recall of the judgment dated 18.02.2000, copy of the review petition was served on the counsel for the opposite party, namely, Sri J. N. Mathur, Advocate on 22.02.2000. During the pendency of the review petition, Shafi-Ullah Khan, sole revisionist died on 22.09.2000, whereupon an application bringing his heirs on record was made and even without disposing of the said application for substitution and even without deciding the said application, review petition was dismissed vide order dated 08.01.2001, whereupon the deponent alongwith his mother and sisters made an application under Section 151 of the Code of Civil Procedure for recall of both the orders dated 18.02.2000 and 8.1.2001, giving detailed reasons praying therein that no person should be punished for the fault of the court. An intimation after filing of the said application was again given to Sri J. N. Mathur, Advocate. Photostat copies of the receipts evidencing the service of the copy of the review petition as well as the intimation about the subsequent application under section 151 of the Code of Civil Procedure are filed herewith as Annexure nos.C.A-1 & C.A-2."

35. Having noticed the content of paragraph-5 quoted above and the said Annexures No.C.A.1 and C.A.2, it would reveal that one annexure appears to be a receiving of a copy of the review petition alongwith the stay application dated 22.02.2000. The other annexure is also a receiving of a notice given by the counsel for the revisionist to the counsel for the respondent stating that the case i.e. the Review No.52 of 2000 would be coming up for orders on 14.02.2001. 17 CLRE No. 54 of 1988

36. In absence of any clear material, to reflect, that the case was actually listed or not on 04.02.2005 and this issue though should have been considered and decided as early as possible but unfortunately could not be done and about two decades have gone by. In the peculiar circumstances where there are allegation and counter allegation and in absence of clear cogent material on record, this Court finds it inappropriate to give any finding on this particular contention raised the learned counsel for the respondent.

37. Be that as it may, in light of the previously mentioned facts and details as noticed above, it reveals that the revisionist did commit grave lapses right from beginning i.e. when the subsequent application dated

22.07.1994 was moved by the revisionist, which has been noticed in para 20 above, which are not being reiterated for the sake of brevity.

38. In all earnestness, if the subsequent application was moved on

22.07.1994 on the ground that his original application was missing, then it was incumbent on the revisionist to have supported his application with an application under Section 5 of the Limitation Act and also prayed for setting aside abatement but that was not done, rather the application were filed in the year 1999 i.e. after more than five years and thereafter once the application came to be dismissed, as a consequence, the revision was abated on 18.02.2000.

39. The revisionist though filed a review but then that review was again still born as it was filed against a dead person. There was no application to bring the legal heirs of deceased Smt. Saubhagwati Devi on record of the review petition.

40. In light of these facts, the order passed by the Court dated 04.02.2005, 18 CLRE No. 54 of 1988 was not justified, as it appears to have been passed without noticing the detailed facts and undisputedly it was ex-parte as far as the present respondents are concerned.

41. The revisionist, knowing the facts as noticed aforesaid committed a glaring blunder by not disclosing the same to the Court, when the order dated 04.02.2005 was passed in review including that Smt. Saubhagwati Devi had died and the review petition ought to have been amended first by bringing the legal heirs on record, before it could be acted upon for any purpose. In such circumstances, apparently there are procedural lapses galore and legally speaking neither the review could have been allowed and without that the revision could not have been restored.

42. The issues relating to substitution and setting aside abatement generally is to be considered liberally but again it is to be noticed that it is not as if in all cases the indulgence is to be granted blindly. In the present facts and circumstances which have been noticed hereinabove, all indicate towards the grave and deliberate lapses at the behest of the revisionist. Even when this matter came up for hearing, the revisionist still did not move any appropriate applications to cover up the delay and to bring the legal heirs of deceased Smt. Saubhagwati Devi on record which is clearly reflective of the mala fide.

43. Rules of procedure are meant to ease and aid the court to administer justice however at the same time, it cannot be permitted to be used as a tool of oppression in the hands of one party to work injustice for the other. Bona fide mistake by a party is viewed differently than a deliberate machination being given a cloak of innocence. It is the duty of the Court to discern between the two and take appropriate action. 19 CLRE No. 54 of 1988

44. Misplaced sympathies, more often than not, do more harm than good. Doing justice to one should not work injustice to the other. Hence any party seeking the benevolence of the Court should clearly demonstrate that such a party deserves it, both, by conduct and in law.

45. In this background and upon considering the facts noticed by this Court in para 20 and 41 above, it has led this Court to satisfy itself that the revisionist has deliberately made application after application to procrastinate the litigation and the fundamental defect even though pointed out, where not cured. In such circumstances, the revisionist was not entitled to any leverage and passing of orders dated 04.02.2005 and

08.01.2001, without considering the facts and without according reasons could not have been passed and that too ex-parte, as the affected party Smt. Saubhagwati Devi had died and after her death, her heirs were not brought on record within the time prescribed in law and an order against a dead person is a nullity.

46. For the aforesaid reasons, the application moved by the respondents bearing No.91970 of 2008 filed in the review is allowed. Hence, this Court does not find any need to enter into the merits of the revision. As a consequence, the order dated 04.02.2005 is recalled. The effect would be that the review and the revision both shall stand abated and be consigned to records. The revisionist shall pay a cost of Rs.50,000/- to the respondent within three weeks from today, failing which the respondent shall be entitled to recover the same in accordance with law. December 12, 2025 (Jaspreet Singh,J.) ALI NEWAZ KHAN ALI NEWAZ KHAN High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench

repairs had taken place. Accordingly, the defendant revisionist was entitled to the defence in terms of the U.P. Act No.13 of 1972.

5. The suit was contested. However, at the stage of evidence of defentants, the defendant sought an adjournment for moving an application for transfer. However, the Court concerned rejected the same and by means of its judgment dated 11.04.1988 decreed the suit.

6. The tenant being aggrieved against the judgment of the SCC Court dated 11.04.1988 preferred the instant revision, which was registered as Civil Revision No.54 of 1988. While entertaining the instant revision, an interim order was granted staying the eviction of the revisionist subject to the deposit of the entire decreetal amount. During the pendency of this revision Smt. Saubhagwati Devi the original landlord/respondent died on

20.12.1989.

7. Before the revision could be heard on merits, at this stage another controversy arose which is hotly contested by the parties. As per the revisionist upon the death of Smt. Saubhagwati Devi, the revisionist 3 CLRE No. 54 of 1988 moved an application well within time seeking substitution of the heirs of Smt. Saubhagwati Devi. The said application (referred to as original application) is said to have been filed on 15.03.1990. It is the case of the revisionist that later the counsel for the revisionist inspected the records of the revision and found that the original application for substitution moved on 15.03.1980 was not on record. In this backdrop, the revisionist filed another application (referred to as subsequent application) on

22.07.1994, however, this subsequent application was not accompanied by any application seeking condonation of delay or setting aside abatement.

8. At this stage, it will also be relevant to notice that a Co-ordinate Bench of this Court had directed the revisionist to file a supplementary-affidavit indicating the number of the original application which was moved by the revisionist and also file an application for seeking condonation of delay and setting aside abatement.

9. The said subsequent application came to be considered by the Court and vide its order dated 18.02.2000 it was dismissed and consequently the Court abated the revision.

10. While dismissing the subsequent application the Court noticed that since the revisionist was aware that Smt. Saubhagwati Devi had died and though subsequent application for substitution was moved but without an application for condonation of delay and setting aside abatement though after five years the application for condonation of delay and setting aside abatement was moved but cause could not be explained, hence the subsequent application was dismissed.

11. Upon dismissal of the revision as abated, the revisionist filed a review 4 CLRE No. 54 of 1988 of the order dated 18.02.2000 and this review came to be registered as Review Petition No.52 of 2000 and is connected with the Civil Revision No.54 of 1988 this is how the two petitions were filed.

12. The reason why the two petition i.e. the review and revision were heard together is that according to the revisionist the revision is to be heard on merits and as per the respondent, once the revision had abated and the revisionist filed a review, which was dismissed but by resorting to unethical practice, the order allowing the review and getting the order by which revision was abated, recalled simultaneously and behind the back of the respondent is unsustainable. Hence the respondent filed an application C.M.No.91970 of 2008 for recall.

13. The Court has heard the learned counsel for the parties both on the application aforesaid and merits of the revision as well.

14. Shri Mohd. Arif Khan, learned Senior Counsel alongwith Shri Mohammad Aslam Khan for the revisionist has put forward a two fold submission:- (14.1) An application for substitution to bring on record the heirs of deceased Smt. Saubhagwati Devi was moved on 15.03.1990. This application was well within time. However, on account of some inadvertence, the same was not found on the record. In order to avoid any controversy, the revisionist had filed another application on 22.07.1994 stating therein that the counsel for the revisionist had made inspection and it revealed that the earlier application for substitution filed on 15.03.1990 was not on record, hence by annexing a copy of the earlier application, the subsequent application was moved on 22.07.1994. 5 CLRE No. 54 of 1988 (14.2) It was urged that though the Court had required the revisionist to inform, the C.M.Application number of the original application and also directed to file an application for condonation of delay and setting aside abatement relating to the subsequent application. However, as per the office report dated 19.05.2000, it indicated that some application bearing No.267 was found in the application institution register but it related to Civil Revision No.54 of 1989 and not the instant Civil Revision No.54 of

1988. The parties of Civil Revision No.54 of 1989 were different and the said revision was filed by 'Kripa Cotton Mills' which had already been dismissed on 22.04.1989. (14.3) Relying upon the aforesaid office report, it was urged that the original application filed by the present revisionist could not be traced but at least it was clear that the revisionist through his earlier counsel had moved an application on 15.03.2019 bearing No.267 of 1990. In such circumstances, the application for substitution should have been allowed but the court taking a pedantic view dismissed the said application which led the revisionist to file the review. (14.4) It was, thus, submitted that the application for review should have been allowed, however, instead the review came to be dismissed on

08.01.2001. Whereafter an application for recall was moved which came to be allowed on 04.02.2005. In the aforesaid backdrop, the application for substitution could be formally allowed and the revision be heard on merits. (14.5) The second submission of the learned Senior Counsel is that no adequate opportunity of hearing was granted by the SCC Court and it has decreed the suit practically ex-parte. 6 CLRE No. 54 of 1988 (14.6) It was urged that an application for adjournment was moved which was rejected and the court concerned should have proceeded in terms of the explanation appended to Order 17 Rule 2 CPC instead it proceeded under Order 17 Rule 3 CPC which was erroneous hence the revision on this ground alone, deserves to be allowed. (14.7) It is urged that the matter deserves to be remitted to the SCC Court with a direction to decide the matter after affording an opportunity to the revisionist to lead his evidence and some time frame be fixed by the Court and the revisionist undertakes to co-operate in early hearing of the suit.

15. Shri G.C. Sinha, learned counsel for the respondent landlord has vehemently opposed the aforesaid submissions. According to the counsel respondent, revision has resorted fraud and misrepresentation. (15.1). It was pointed out that as per the case of the revisionist, upon the death of Smt. Saubhagwati Devi, an application for substitution was moved well in time, however, it could not be traced nor its details could be given by the revisionist. (15.2). The alleged subsequent application bearing No.267-M of 1994, was moved without any application for setting aside abatement and condonation of delay. It is urged that this is an admitted fact that the subsequent application was moved on 22.07.1994 but it did not have any explanation for condoning the delay nor there was application seeking setting aside abatement. (15.3). It was also urged that, later, the Court noticing the aforesaid fact dismissed the application vide order dated 18.02.2000. Against that 7 CLRE No. 54 of 1988 dismissal order the revisionist preferred a review which was dismissed on

08.01.2001. (15.4). It is urged that an alleged application under section 151 CPC was moved by the revisionist bearing No.23-M of 2001 whereby the order dated 08.01.2001 and the earlier order dated 18.02.2000 were sought to be recalled. However, it is the case of the respondent that the counsel for the respondent was not served with a copy of the said application. (15.5). It was submitted by Shri Sinha that the said case was not listed before the Court. However, by resorting to unethical means, the case was got listed and behind the back of the respondent an order was got passed on 04.02.2005 whereby earlier orders dated 18.02.2000 and 08.01.2001 both were recalled, which could not have been done. (15.6). It was also submitted that an application for recall, which should have been filed in the review petition but it was filed in the revision, which already had been dismissed as abated vide order dated 18.02.2000. Thus, the order itself passed on 04.02.2005 was bad in the eyes of law and this prompted the revisionist to file an application bearing No.91970 of 2008 bringing all the aforesaid facts to the notice of the Court and this application be decided, first. (15.7). It was urged that for the aforesaid reason, the revision as well as the review both are liable to be dismissed with heavy costs as the revisionist is guilty of sharp practice. (15.8). Shri Sinha further submitted that in so far as the merits of the revision is concerned, the revisionist was granted ample opportunity before the trial court to lead evidence. However, he only wanted to delay 8 CLRE No. 54 of 1988 the proceedings and in such circumstances, the trial court on 11.04.1988 decreed the suit for eviction and arrears of rent. It recorded a clear finding that the revisionist delayed the proceedings and all efforts were made to some how keep the matter pending. Now more than 40 years have lapsed and the landlord has not been able to get justice and in such circumstances and for all the reasons as mentioned above the review and revision both deserve to be dismissed with heavy and exemplary costs.

16. Before dealing with the submissions of the learned Counsel for the parties on merits of the revision, it will be appropriate to first consider whether orders dated 04.02.2005, 08.01.2001 and 18.02.2000 passed by the Co-ordinate Bench in the revision and the review in the given circumstances was justified or not, especially in light of the averments made by the respondent in his Application No.91970 of 2008. C.M.Application No.91970 of 2008

17. This Court is of the view that C.M.Application No.91970 of 2008 should be considered first, because if the application is allowed then the proceedings would stand dismissed and if rejected only then the revision can be heard on merits.

18. Evidently, it is an undisputed fact that during the pendency of the revision Smt. Saubhagwati Devi expired on 20.12.1989. It is the case of the revisionist that he had moved an application for substitution bearing No.267-M of 1990 on 15.03.1990. This fact is gathered from the perusal of the copy of the alleged original application, which was annexed with the subsequent application moved on 22.07.1994. There is a noting, that the original application was moved on 17.03.1990, while the subsequent application was moved on 22.07.1994. 9 CLRE No. 54 of 1988

19. Significantly, this fact of filing of the original application is disputed by the respondent. From the perusal of the contents of the said subsequent application wherein it was averred by the revisionist, that his erstwhile counsel had made an inspection of the record and then it revealed that the original application dated 15.03.1990 was not on record, which prompted the revisionist to file the subsequent application.

20. This Court on perusal of the said subsequent application, finds that in the affidavit accompanying the said subsequent application dated

22.07.1994, it lacks relevant particular, as under:- (i) Relating to the date on which the said inspection was made. (ii) It also does not indicate any reason for not moving any application for condoning the delay or setting aside abatement, despite knowing the fact that there was no record of the filing of the original application and this very fact of moving the original application was being denied vehemently by the respondent, nor in the subsequent application any prayer to the said effect was made, though it was moved on 22.07.1994 i.e. after more than 4 years i.e. from 15.03.1990. (iii) The record indicates that the revisionist was granted time to file a supplementary-affidavit to indicate the number of the earlier application dated 15.03.1990 and was also directed to file an application seeking condonation of delay and setting aside abatement. However, only on

09.09.1999 an application for condonation of delay and setting aside abatement was moved i.e. after five years from the date of moving the subsequent application. (iv) The record further indicates that on 27.04.2000 (in review petition 10 CLRE No. 54 of 1988 No.52 of 2000 as by then the revision had abated vide an order dated

18.01.2000 passed in revision) an order-sheet was drawn whereby the office was directed to trace out C.M.A.No.267-M of 1990. (v) The office report dated 19.05.2000, available on the record of the review petition No.52 of 2000, states, that as per the photocopy of the application institution register, at page-1 dated 15.03.1990, it shows that at serial no.267 an application for substitution was moved in Civil Revision No.54 of 1989. However, at page-2 of the progress register of civil revision for the year 1989 maintained by the office indicates that the Civil Revision No.54 of 1989 was already dismissed on 22.04.1989 i.e. eleven months prior from the alleged date of the filing of the original application bearing No.267 of 1990. Moreover, the said civil revision no. 54 of 1989 did not relate to the instant parties rather it was filed by M/s Kirpa Cotton Mills. (vi) The record further indicates that the revisional court on 18.02.2000 dismissed the revision as abated as the application for seeking condonation of delay and setting aside abatement was not moved with the subsequent application for substitution, though at a later stage, on

09.09.1999 the application for condonation of delay and setting aside abatement was filed, after five years and the reason could not be justified. (vii) The order dated 18.02.2000 passed by the Co-ordinate Bench is being reproduced hereinafter for ready reference:- "Heard application application for substitution. learned counsel of for condonation of delay the applicant on in moving It appears that the applicant stated that he had made an application on 17th March, 1990 for substitution in place of deceased-opposite party who died on 20th December, 1989. 11 CLRE No. 54 of 1988 The application for substitution was made only on 22nd July, 1994 without making the mention of the number of the application which was moved on 17.03.90 for substitution. Alongwith the said application for substitution, no application for condonation of delay or for that matter for setting aside abatement had been moved. It was only on 9th September, 1999 that an application for condonation of delay and another application for setting aside abatement were moved. In the affidavit accompanying the said application for condonation of delay, no mention of the number of the substitution application allegedly moved was given. The assertion made on behalf of the revisionist that he had made an application for substitution in place of deceased-opposite party on 17th March, 1990, goes to show that the revisionist was aware of the death of the opposite party and yet did not make an application for substitution prior to 22.07.1994. The application application for substitution, therefore, has no legs to stand and there is no good ground made out for condoning the delay. The application is accordingly rejected. for condonation of delay in moving Since the application for condonation of delay has been rejected, the application for substitution, C.M.Application No.237 (M) of 1994 which is barred by time, is hereby for setting aside the application rejected. Similarly, abatement is also rejected. The revision stands abated in default of the revisionist in moving the application for substitution in place of deceased- opposite party. The stay order is vacated." (viii) The record further reveals that the revisionist filed a review application on 22.02.2000. While the said review was pending, an application was moved by the respondent seeking vacation of the interim order passed in the review application. (ix) It was brought to the notice of the review court, by an application seeking setting aside of the interim order passed in review, that the review itself was filed against a dead person, namely, Smt. Saubhagwati Devi, as shall be evident from the bare perusal of the memo of review. (x) Even though in the first paragraph of the review application, it was mentioned that Smt. Saubhagwati Devi had died but there is no explanation as to why the dead person was made a party and not her legal 12 CLRE No. 54 of 1988 heirs. (xi) The revisionist thereafter move an application bearing No.767(M) of 2000 indicating that the sole revisionist/review petitioner Shafi-Ullah Khan had expired on 22.09.2000 and his heirs may be brought on record. What is significant to note is the fact, that the said application which ought to have been filed in the review, was placed on record of the civil revision. (xii) This application No.767 of 2000 came to be dismissed by means of order dated 08.01.2001. Once the said application was rejected the effect would be that there were no heirs of the revisionist or the landlord on record, consequently the review petition also ought to have been dismissed as abated. (xiii) It is in the aforesaid backdrop that an application bearing No.23 (M) of 2001 was filed by the revisionist but it was referable to the review petition but again the same was not placed on the record of the review rather it was placed on the record of the civil revision. (xiv) Even in the array of the parties of this particular application, which was moved by the heirs of Shafi-Ullah Khan the legal heirs of Smt. Saubhagwati Devi were not brought on record by the review petitioner despite knowing the fact Smt. Saubhagwati Devi had expired on

20.12.1989. (xv) This assumes significance for the reason that already there was a hot contest regarding the substitution of the heirs of Smt. Saubhagwati Devi in the revision, which abated and even while filing the review, the heirs were not brought on record. 13 CLRE No. 54 of 1988

21. Now in this backdrop, a contention was raised that the said application for recall which was filed in review and placed on the revision, came to be placed before the Court on 04.02.2005 and it was allowed though it was the specific case of the respondent that the said case was not listed before the Court on 04.02.2005 and by unethical means the said order was got passed. This is contested by the revisionist to state that the application was served on the counsel for the respondent.

22. The respondent, on the other hand, moved an application No.91970 of 2008 in the review, for recalling of the order dated 04.02.2005. In the said application, it was urged that the order dated 04.02.2005 was got passed on the application under section 151 CPC which was placed on the revision and not on the review, consequently the order was bad.

23. On the basis of facts, which emerge from the record, the Court finds that the revision was dismissed on 18.02.2000 as abated. An application for review was filed on 22.02.2000, seeking the review of the order dated

18.02.2000.

24. The review was filed against a dead person, as Smt. Saubhagwati Devi had already expired and she was impleaded as the sole respondent in review despite the fact of Smt. Saubhagwati Devi,s death was known to the revisionist, who was also the review petitioner.

25. The learned Senior Counsel could not give any explanation as to under what circumstances Smt. Saubhagwati Devi was impleaded as the sole respondent in the review petition filed on 22.02.2000 despite knowing the fact that she had died way back on 20.12.1989 i.e. almost 11 years ago from the date of filing of the review. 14 CLRE No. 54 of 1988

26. That being so, however, the fact remains that no order dated

04.02.2005 could have been passed against a dead person in review. It is also clear from the record that even till date no formal application was moved in the review petition to bring on record the heirs of deceased, Smt. Saubhagwati Devi.

27. The original review petitioner Shafi-Ullah Khan died and an application was moved by the revisionist which is bearing paper No.767- M of 2000. However, the said application though mentioned that it relates to the review but it was also filed in the revision. The said application bearing No.767(M) of 2000 was rejected by the Court on 08.01.2001. The moment the said order was passed, even though on the application relatable to the review as by then the revision had not been restored and it was only the review which was pending and in such circumstances, if the order dated 08.01.2001 was passed on the review then apparently the review also stood dismissed.

28. Once this position in law becomes clear then as a matter of fact the application moved by the revisionist, bearing No.23-M of 2001 under Section 151 CPC, seeking recall of order dated 18.02.2000 and

08.01.2001, could not be prayed for, together as one related to an order by which the revision abated and the other by which the review was dismissed.

29. As noticed above, this application under Section 151 CPC though was relatable to the review, but it was filed in civil revision, which at the cost for repetition, could not be considered as by then the review as well as the revision both were dismissed. Without first getting the review restored and allowed on merits the revision could not have been considered. 15 CLRE No. 54 of 1988

30. The record further indicates that on the said application bearing No.23(M) of 2001, a Co-ordinate Bench of this Court on 04.02.2005 allowed the said application. As a necessary corollary both the order dated

08.01.2001 and 18.02.2000 were recalled.

31. The order dated 04.02.2005 passed by the Co-ordinate Bench is relevant to be noticed and it reads as under:- "This is an application for recall of the order dated 18.02.2000 and 08.012001. The application is supported by the affidavit of Basharat Ullah Khan the applicant no.2. Reasons given in the affidavit seems to be sufficient. The application is allowed and the both the orders are recalled. List the case in April, 2005 for disposal of the substitution matter."

32. From the perusal of the aforesaid quoted order, it would indicate that once the two orders were recalled, there was no reason to fix the matter for disposed of substitution matter. If appears that full facts were not brought to the notice of the Court which led to passing of the aforesaid order.

33. At this juncture, it will be relevant to consider the opposition raised by the counsel for the respondent, to state that they did not receive the copy of the said application nor the case was listed before the Court on

04.02.2005 and in the aforesaid circumstances, the said order is an outcome of unethical means and cannot be sustained. This is controverted by the counsel for the revisionist stating that the copy of the said applications were received by the then counsel for the respondent and in case after receiving the copies, if the counsel did not turn up at the time of call of the case, the revisionist cannot be blamed for it.

34. In case if the aforesaid submissions are noticed and seen in context of 16 CLRE No. 54 of 1988 the record, it would reveal that the revisionist/review petitioner had moved an application titled "Application for dismissal of application for abatement/dismissal of the review petition" C.M.A. No.20145 of 2008 referable to the review petition, is placed on record of the revision. The said application is accompanied by an affidavit of Basharat Ullah Khan and alongwith the said affidavit Annexures No.C.A-1 and C.A.2 have been filed. The context in which the said two annexures have been filed, are relatable to paragraph-5 of the affidavit filed with the Application No.20145 of 2008 and paragraph-5 of the same is being reproduced hereinafter for ready reference:- "That thereupon the revisionist made an application for recall of the judgment dated 18.02.2000, copy of the review petition was served on the counsel for the opposite party, namely, Sri J. N. Mathur, Advocate on 22.02.2000. During the pendency of the review petition, Shafi-Ullah Khan, sole revisionist died on 22.09.2000, whereupon an application bringing his heirs on record was made and even without disposing of the said application for substitution and even without deciding the said application, review petition was dismissed vide order dated 08.01.2001, whereupon the deponent alongwith his mother and sisters made an application under Section 151 of the Code of Civil Procedure for recall of both the orders dated 18.02.2000 and 8.1.2001, giving detailed reasons praying therein that no person should be punished for the fault of the court. An intimation after filing of the said application was again given to Sri J. N. Mathur, Advocate. Photostat copies of the receipts evidencing the service of the copy of the review petition as well as the intimation about the subsequent application under section 151 of the Code of Civil Procedure are filed herewith as Annexure nos.C.A-1 & C.A-2."

35. Having noticed the content of paragraph-5 quoted above and the said Annexures No.C.A.1 and C.A.2, it would reveal that one annexure appears to be a receiving of a copy of the review petition alongwith the stay application dated 22.02.2000. The other annexure is also a receiving of a notice given by the counsel for the revisionist to the counsel for the respondent stating that the case i.e. the Review No.52 of 2000 would be coming up for orders on 14.02.2001. 17 CLRE No. 54 of 1988

36. In absence of any clear material, to reflect, that the case was actually listed or not on 04.02.2005 and this issue though should have been considered and decided as early as possible but unfortunately could not be done and about two decades have gone by. In the peculiar circumstances where there are allegation and counter allegation and in absence of clear cogent material on record, this Court finds it inappropriate to give any finding on this particular contention raised the learned counsel for the respondent.

37. Be that as it may, in light of the previously mentioned facts and details as noticed above, it reveals that the revisionist did commit grave lapses right from beginning i.e. when the subsequent application dated

22.07.1994 was moved by the revisionist, which has been noticed in para 20 above, which are not being reiterated for the sake of brevity.

38. In all earnestness, if the subsequent application was moved on

22.07.1994 on the ground that his original application was missing, then it was incumbent on the revisionist to have supported his application with an application under Section 5 of the Limitation Act and also prayed for setting aside abatement but that was not done, rather the application were filed in the year 1999 i.e. after more than five years and thereafter once the application came to be dismissed, as a consequence, the revision was abated on 18.02.2000.

39. The revisionist though filed a review but then that review was again still born as it was filed against a dead person. There was no application to bring the legal heirs of deceased Smt. Saubhagwati Devi on record of the review petition.

40. In light of these facts, the order passed by the Court dated 04.02.2005, 18 CLRE No. 54 of 1988 was not justified, as it appears to have been passed without noticing the detailed facts and undisputedly it was ex-parte as far as the present respondents are concerned.

41. The revisionist, knowing the facts as noticed aforesaid committed a glaring blunder by not disclosing the same to the Court, when the order dated 04.02.2005 was passed in review including that Smt. Saubhagwati Devi had died and the review petition ought to have been amended first by bringing the legal heirs on record, before it could be acted upon for any purpose. In such circumstances, apparently there are procedural lapses galore and legally speaking neither the review could have been allowed and without that the revision could not have been restored.

42. The issues relating to substitution and setting aside abatement generally is to be considered liberally but again it is to be noticed that it is not as if in all cases the indulgence is to be granted blindly. In the present facts and circumstances which have been noticed hereinabove, all indicate towards the grave and deliberate lapses at the behest of the revisionist. Even when this matter came up for hearing, the revisionist still did not move any appropriate applications to cover up the delay and to bring the legal heirs of deceased Smt. Saubhagwati Devi on record which is clearly reflective of the mala fide.

43. Rules of procedure are meant to ease and aid the court to administer justice however at the same time, it cannot be permitted to be used as a tool of oppression in the hands of one party to work injustice for the other. Bona fide mistake by a party is viewed differently than a deliberate machination being given a cloak of innocence. It is the duty of the Court to discern between the two and take appropriate action. 19 CLRE No. 54 of 1988

44. Misplaced sympathies, more often than not, do more harm than good. Doing justice to one should not work injustice to the other. Hence any party seeking the benevolence of the Court should clearly demonstrate that such a party deserves it, both, by conduct and in law.

45. In this background and upon considering the facts noticed by this Court in para 20 and 41 above, it has led this Court to satisfy itself that the revisionist has deliberately made application after application to procrastinate the litigation and the fundamental defect even though pointed out, where not cured. In such circumstances, the revisionist was not entitled to any leverage and passing of orders dated 04.02.2005 and

08.01.2001, without considering the facts and without according reasons could not have been passed and that too ex-parte, as the affected party Smt. Saubhagwati Devi had died and after her death, her heirs were not brought on record within the time prescribed in law and an order against a dead person is a nullity.

46. For the aforesaid reasons, the application moved by the respondents bearing No.91970 of 2008 filed in the review is allowed. Hence, this Court does not find any need to enter into the merits of the revision. As a consequence, the order dated 04.02.2005 is recalled. The effect would be that the review and the revision both shall stand abated and be consigned to records. The revisionist shall pay a cost of Rs.50,000/- to the respondent within three weeks from today, failing which the respondent shall be entitled to recover the same in accordance with law. December 12, 2025 (Jaspreet Singh,J.) ALI NEWAZ KHAN ALI NEWAZ KHAN High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench