IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.3 of 2006 M/S BIHAR STATE FOOD & CIVIL S Versus JAYANTI SHARMA ----------- 9. 16.12.2008 This appeal is against the order dated 28.9.2005 filed before the Sub-judge-II, Patna passed in Money Suit No.124 of 1996 wherein the prayer of appellant/plaintiff for substituting the heirs of the sole defendant/respondent in a petition under Order 22 Rule-4 read with Section151 of the C.P.C. has been refused. The appellant/plaintiff had filed the Money Suit against the sole defendant Dayanand Sharma. The notice sent in registered envelope, returned back with the report of postal peon that the addressee i.e. the defendant Dayanand Sharma had died. On receiving this information, the trial court vide its order dated 27.12.2004 directed the plaintiff/appellant to take necessary steps till 3.2.2005 with regard to substitution of the heirs of the deceased/defendant. But the plaintiff did not do so and went on filing simple attendance on some subsequent dates. It was on 15.9.2005 that a substitution petition for substituting the heirs of the deceased/defendant was filed by the appellant/plaintiff. The stand of the plaintiff/appellant before the trial court was that that the appellant got knowledge about the death of the defendant on 15.7.2005 and thereafter, the substitution petition was filed on 15.9.2005. The plaintiff/appellant had also taken the plea that the time was taken in ascertaining heirs of the deceased/defendant and the trial court mentioned in its order that there was delay of 290 days. It was also mentioned that any petition for condoning the delay was not filed by the petitioner, thus being not satisfied with grounds for the - 2 - delay, the trial court refused the prayer for substitution. The learned counsel for the appellant/plaintiff argued that the plaintiff/appellant had no knowledge about the actual death of the deceased and in verifying the date of the death, time was taken and some time was also consumed in ascertaining the name and details of heirs of the deceased. The leaned counsel for the respondent submitted that that the deceased/defendant was an employee of plaintiff/appellant and thus the plaintiff had all kinds of knowledge and information about him and that it was sheer negligence and laches in not filing the substitution petition within time. It was also submitted that since the substitution petition was not filed within prescribed limitation, the suit had abated, hence, the appellant was required to file a separate petition for setting aside abatement along with a petition for condoning the delay in the filing of that petition which was necessary requirements of law but it has not been complied, hence, the substitution petition was technically not fit to be allowed. Thus, hearing both sides, I find that the plaintiff has not been able to give any reasonable grounds for the delay in the filing of the substitution petition. Besides this, any petition for condoning the delay and setting aside abatement was also not filed for substituting the heirs in the suit which had already abated. I feel that the learned court below was perfectly justified in refusing the prayer for substitution. The order needs no interference. In the result, the appeal is dismissed. Ravi/- (C.M. Prasad, J.)