1 43 S.B. CIVIL WRIT PETITION NO.7701/2007 (Manoj Kumar Vs. Sarpanch Gram Panchayat & Ors.) Date of Order :: 16th May 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.Hemant Choudhary, for the petitioner Mr.K.K.Maharshi, for the respondents Nos. 1&2. .... BY THE COURT By the judgment and decree dated 17.07.2003, while decreeing the suit (C.O. No.97/2001) for declaration and injunction as filed by the plaintiffs-respondents in representative capacity, the Civil Judge (Senior Division) Didwana declared the disputed land as the property meant for public use and issued consequential prohibitory and mandatory injunction against the defendant Bhanwarlal. The defendant Bhanwar Lal, though preferred an appeal against the judgment and decree aforesaid but expired during pendency of the appeal, on 12.04.2007. An application was moved before the learned Appellate Court (Additional District Judge, Didwana) on 03.07.2007 on behalf of the minor petitioner Manoj Kumar, said to be the adopted son of appellant Bhanwar Lal, for his substitution in place of the deceased appellant. The said application has been rejected by 2 the learned Appellate Court by its impugned order dated 26.09.2007 (Annex.5) on the ground that the application, said to have been filed by the guardian of the applicant, did not bear the signatures on behalf of the applicant; and was not supported by affidavit either. The learned Appellate Court has further observed that the sole appellant having expired more than five months back, the appeal has abated; and has, accordingly, consigned the same to the record. In this writ petition preferred on behalf of the said applicant against the order dated 26.09.2007, notices for final disposal were issued on 28.11.2007 and both the parties were directed to maintain status quo in relation to the property in dispute. On behalf of the contesting respondents, learned counsel Mr. Maharshi has put in appearance. Having examined the matter in its totality, this Court is clearly of opinion that assailing of the order dated 26.09.2007 by way of the writ petition cannot be countenanced. For whatever reason, the application moved for substitution of the legal representative has been rejected; and ultimately the Appellate Court has held the appeal having abated. Nothing has prevented the applicant from applying for the order to set aside abatement or dismissal of the appeal by showing that he was prevented by any sufficient cause from continuing the 3 appeal whereupon the Court concerned could have considered whether to set aside abatement or not. If the Court would have refused to set aside abatement, such refusal was open to appeal per Clause (k) of Rule 1 of Order XLIII of the Code of Civil Procedure. In view of the specific remedies being available to the petitioner, to be taken resort to in accordance with law, there does not appear any reason to re-consider the order dated 26.09.2007 in this writ petition. It is not in dispute that the application as made to the Appellate Court on behalf of the petitioner was not supported by an affidavit. The learned Appellate Court cannot be faulted in rejecting such application for want of affidavit, particularly in view of the facts sought to be asserted on behalf of the applicant. Viewed from any angle, the petitioner is not entitled for any relief in this writ petition. The writ petition is, therefore, dismissed. However, in the circumstances of the case, there shall be no order as to costs and it is also made clear that it shall be permissible for the petitioner to take resort to appropriate remedies in accordance with law. (DINESH MAHESHWARI), J. s.soni