@JUDGMENTTAG-ORDER
Dhirendra Mishra, J.@mdashThis Civil Revision is directed against the order dated 6-5-96 passed by 2nd Civil Judge Class-II, Raipur in Civil Suit
No. 119-A/94 whereby the application of the non-applicant/plaintiff under Order 22. Rule 3 of the C.P.C. for bringing Legal Representatives of
deceased Puroo has been allowed and name of the respondents No. 1. 1 to 1.4 has been ordered to be substituted in place of deceased/Puroo.
2. The short question involved for adjudication of this Civil Revision is that whether an application under Order 22, Rule 3 of the C.P.C. for
substitution, preferred after expiry of 90 days from the date of the death of plaintiff, can be considered and allowed in the absence of an application
for setting aside abatement under Order 22. Rule 9 of the C.P.C.
3. Learned Counsel for the applicant submits that plaintiff Puroo died on 15-5-89 and respondent No. 1.1 to 1.4 Legal Representatives filed
application for bringing them as Legal Representatives of plaintiff on 22-11-89. admittedly, after a period of 90 days of the limitation prescribed for
the same, when the suit stood abated.
4. The above application was not maintainable in the absence of an application under Order 22. Rule 9 of the C.P.C. for setting aside the
abatement. Learned Civil Judge could not, have considered the application preferred by the Legal Representatives as an application for setting
aside abatement.
5. On the other hand learned Counsel for the non-applicants submitted that the application for substitution without bringing application for
abatement is maintainable and such application may be treated as an application for setting aside abatement and in appropriate cases where the
Court is satisfied with the reasons assigned for preferring this application belatedly the Legal Representatives can be permitted to be substituted
and abatement could be set aside
6. Reliance is placed in the matter of Sri Ram Prasad Vs. The State Bank of Bikaner and Others, in the matter of Maghar Mal and Sons Vs. The
National Fertilizers Ltd., and in the matter of Smt. Kamlesh Vs. Tekchand and Others, .
7. I have heard learned Counsel for the parties.
In the matter of Sri Ram Prasad Vs. The State Bank of Bikaner and Others, , it is held thus:
learned Counsel for the applicant has next contended that the application purports to be under Order 22, Rule 4 and, not under Order 22, Rule 9,
C.P.C. and in the absence of a prayer for setting aside the abatement the application under Order 22, Rule 4, C.P.C. was not maintainable. The
argument of the learned Counsel for the applicant is fallacious. If there had been no abatement there could be no question of setting aside the
abatement. Moreover, in a case where an applicant applies for condoning the delay and for bringing on record the Legal Representatives, a prayer
of setting aside the abatement is implicit in the prayer for substitution.
8. In the matter of Maghar Mal and Sons Vs. The National Fertilizers Ltd., , in para 5 it has been held thus:
it is clear that in case a suit does not abate and an application for impleading the Legal Representatives of the deceased-plaintiff is made, the Court
in case it is disputed that the persons sought to be impleaded are the Legal Representatives of the deceased, shall determine first that question and
if they are found to be so, they shall be impleaded as plaintiffs. If the suit has abated in that case an application for setting aside abatement should
be made. On that application, the Court in addition to finding out as to whether the applicants are the Legal Representatives of the deceased shall
also determine whether there are sufficient grounds to set aside the abatement. If the Court determines both the questions in favour of the applicant,
the abatement shall be set aside and the Legal Representatives will be impleaded as plaintiff''s in place of the deceased. However, if either of the
questions is decided against the applicants, Legal Representatives shall not be entitled to be substituted as the plaintiffs. It is well settled that if an
application is made for impleading the Legal Representatives of a deceased-plaintiff in a suit which has abated, the application should be treated as
an application for setting aside the abatement and proceeded with accordingly.
9. Similarly in the matter of Smt. Kamlesh AIR 2003 All 299 (supra) it has been observed that:
an application made to bring the Legal Representatives of the deceased defendant on record after the time prescribed therefore by law should
ordinarily be treated as an application to set aside the abatement of the suit which has taken place even though it is not asserted that the delay was
due to any reasonable cause. The evidence about the sufficient cause for the delay can be produced in the appellate Court and all that is necessary
is that the Court should feel satisfied that discretion should be exercised in favour of the party seeking the setting aside of the abatement.
10. Thus, from the above judgments it is evident that the application for substitution under Order 22, Rule 3 of the C.P.C. or under Order 22, Rule
4 of the C.P.C. filed after prescribed period of limitation i.e. 90 days, is to be ordinarily treated as an application to set aside the abatement of the
suit which has taken place even though no formal prayer for setting aside abatement has been made in the application.
11. In the instant case also the Legal Representatives of the plaintiff moved an application under Order 22, Rule 3 of the C.P.C. for substituting
their names in place of the plaintiff Puroo Dheemar since this application was filed beyond the prescribed period of limitation. Another application
u/s 5 of the Limitation Act for condonation of delay in filing the above application was filed which was supported with an affidavit and the Court
below considering the reasons assigned for delay in filing the application, condoned the delay and allowed the application for substitution.
12. On the basis of the aforesaid discussion, I am of the opinion that there is no illegality or infirmity in the impugned order which calls for
interference under the revisional jurisdiction. The revision is thus devoid of substance and the same is dismissed with cost.