( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 1926 OF 2005 Kusum w/o Ramdas Rashinkar, R/o Sangamner, Tq. Sangamner, District Ahmednagar. PETITIONER VERSUS 1. Smt. Kaushalaya w/o Dattatraya Mancharkar, R/o Main Road, Market Area, Sangamner, Tq. Sangamner, Dist. Ahmednagar. 2. Sow. Shakuntala w/o Govindrao Koshti, R/o Avasari (kh.), Tq. Ambegaon, Dist. Pune. RESPONDENTS ..... Mr. P.R. Katneshwarkar, advocate for the petitioner. Mr. S.K. Shinde, advocate for the respondents. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 25th June, 2009] ORAL JUDGEMENT : 1. By this petition, the petitioner challenges order passed by the learned Civil Judge (J.D.), ( 2 ) Sangamner on an application (M.A. No. 18/2000) in suit bearing R.C.S. No. 206/1989. 2. By the impugned order, the learned Civil Judge allowed application which was filed by the respondents purportedly under Order XXII Rule-9 of the Civil Procedure Code for setting aside of the abatement order. 3. The suit was filed by deceased Dattatraya Mancharkar for declaration that will-deed dated 12-05-1988 allegedly executed in favour of the petitioner by one Rukminibai is false and fabricated. Dattatraya Mancharkar further prayed that he be declared as sole heir of deceased Rukminibai, who was original owner of the property in question and also claimed relief of injunction. The subject matter of the suit comprised of two (2) parcels of the properties bearing CTS No. 1244 and CTS No. 1245 situated at Sangamner. 4. There is no dispute about the fact that original pliantiff – Dattatraya Mancharkar died on 29th April, 1994 while the suit was pending. His legal ( 3 ) representatives were not taken on record within period of 90 days after his death. It is an admitted fact that the respondents filed an application (Exh-46) on 23rd April, 1996 for substitution as legal representatives of deceased Dattatraya Mancharkar being his widow and daughter, respectively in his stead. They submitted that they were under the wrong impression that the record and proceedings of the suit was sent to the appellate Court and, therefore, they could not file the application within the given time. They submitted further that it was necessary to implead them as the legal heirs of deceased Dattatraya Mancharkar in as much as they were likely to suffer irreparable loss. The application was opposed by the petitioner. After hearing both the sides, the application (Exh-46) came to be dismissed on 26th April, 2000. The learned Civil Judge rendered an elaborate order while dismissing such application. At the end of said order, the learned Civil Judge held that the suit has abated. Thereafter, the respondents filed another application (Misc.Appln. No. 18/2000) purportedly under Order-XXII Rule-9 of the Civil Procedure Code for setting aside the abatement and ( 4 ) their substitution as legal representatives of deceased plaintiff Dattatraya Mancharkar. This second application filed by them came to be allowed vide the impugned order. Hence, the petition. 5. Heard learned counsel for the parties. 6. If a sole plaintiff dies, then as provided under Order-XXII Rule-3 of the Civil Procedure Code, an application for substitution can be made, within the given timeframe, by the legal representatives. Sub- clause (2) of Rule-3 provides that if such application is not submitted within the time limit, the suit shall abate so far as the deceased plaintiff is concerned. The abatement of suit is automatic. There is no need to declare that the suit has abated. There is no need to pass any separate order about the abatement unless the concerned defendants seek costs as provided by Rule-3 (2) of Order-XXII. The suit automatically abated. Therefore, when the legal heirs were not substituted within period of 90 days from death of the plaintiff i.e. Dattatraya Mancharkar who died on 29th April, 1994. ( 5 ) Needless to say, the automatic abatement of the suit came into effect on 30th July, 1994 when the 90 days’ period was over. The only recourse open to the legal representatives of deceased plaintiff – Dattatraya Mancharkar was to file an application for setting aside the abatement alongwith an application for condonation of delay as contemlated under Order-XXII Rule-9 of the Civil Procedure Code. The reasons given by the respondents may be quite plausible and rather appealing so as to condone the delay. The learned Civil Judge seems to have been under wrong impression that the first application was filed by the respondents as per provisions of Order-XXII Rule-3 of the Civil Procedure Code and, therefore, he entertained the second application, treating it as one under Order-XXII Rule-9. This was the erroneous approach taken by him. For, the first application (Exh-46) itself was filed after a considerable delay of about two (2) years i.e. On 23rd April, 1994 whereas the suit was deemed to have abated w.e.f. 30th July, 1994. 7. Rightly or wrongly, the application (Exh-46) ( 6 ) came to be rejected. The only recourse open to the respondents was to challenge such order by way of appeal under Order-XLIII Rule 1 (k) of the Civil Procedure Code. Instead of filing such appeal, they filed the second application for setting aside the abatement. The first application itself, though it was captioned as “under Order-XXII Rule-3 of the Civil Procedure Code”, yet it was one filed under Order-XXII Rule-9 of the Civil Procedure Code. The title of the application and the provisions of law quoted is not significant. The learned Civil Judge ought to have considered the true position of the law that such an application was not filed within limitation as provided under Order-XXII Rule-3 of the Civil Procedure Code and, therefore, was within the ambit of Rule-9. Needless to say, the second application for the same kind of relief was untenable and was barred by principle of res judicata. In this view of the matter, the impugned order is quite perverse and unsustainable. 8. In the result, the writ petition is allowed. The impugned order is quashed. The respondents are at ( 7 ) liberty to take appropriate legal course as may be permissible under the law so as to set right the wrong. The delay caused in the process of substitution may be considered by the concerned Court, if properly explained. No costs. Rule is made absolute accordingly. 9. In view of disposal of the writ petition, the civil application No. 5540/2008 does not survive and hence, stands disposed of accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/WP1926-05