IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.764 of 2010 1. Dasai Dusadh @ Dasai Hazra , Son of Late Badri Dusadh 2. Bihari Dusadh @ Bihari Hazra, Son of Late Bishun Dusadh 3. Bhikhari Dusadh @ Bhikhari Hazra, Son of Late Bishun Dusadh 4. Mater Dusadh @ Mater Hazra, Son of Late Bishun Dusadh All are residents of Village- Hira Chapra, P.O. Adapur, P.S. Adapur, District- East Champran ------------------------ Defendants/ Appellants Versus 1. Maheshwar Singh , Son of Late Rajendra Singh 2. Rakeshwar Singh, Son of Late Rajendra Singh 3. Mithilesh Singh, Son of Late Rajendra Singh 4. Mira Devi, Daughter of Late Rajendra Singh 5. Manju Kumari, Daughter of Late Rajendra Singh All residents of Village- Hira Chapra, P.O. Adapur, P.S. Adapur, District- East Champaran, proposed names were to be substituted as Respondents in place of deceased sole Respondent, namely, Rajendra Prasad Singh. ------------------------ Respondents. ----------- 04 27-06-2011 Heard Sri Sunil Kumar, learned counsel for the defendants/appellants and Sri Awadhesh Kumar Pandey, learned counsel appearing on behalf of all the Respondents. The present appeal was preferred under Order 43 Rule 1 (k) of the Code of Civil Procedure against the order dated 19.6.2010 passed by learned Addl. District & Sessions Judge, F.T.C.No.1, Motihari in T.A.No. 82 of 2001/ 25 of 2007, whereby and whereunder the learned court below has rejected the prayer for time made on behalf of the defendants- appellants and held that the entire appeal stands abated. Short fact of the case is that earlier a Title Suit vide T.S. No.39 of 1995 was filed by sole plaintiff, namely, Rajendra Prasad Singh for declaration of title, in which the appellants were arrayed as defendants. The suit was decreed in favour of Rajendra Prasad Singh and against the defendant- appellants. 2 Aggrieved with the Judgment and decree passed in Title Suit No.39 of 1995, the defendants- appellants preferred an appeal vide Title Appeal No. 82 of 2001/ 25 of 2007. During the pendency of the appeal, the sole respondent died on 20.03.2005. However, no steps were taken by either of the parties to inform the court regarding the death of sole Respondent. At belated stage, on 12.2.2008, a petition was filed by learned lawyer for the sole Respondent along with death Certificate of the Respondent, wherein it was indicated that appellants have not taken any step for getting the legal heirs of the sole defendant substituted in the appeal in question. Even though the petition was filed by learned counsel for the deceased Respondent, the matter was kept pending and finally by the impugned order, the appeal has been held as abated. By the impugned order, the petition for time filed on behalf of the appellants was rejected and the appeal was held as abated. Learned counsel for the appellants submits that the court below has committed an error of record in view of the fact that the record itself indicates that after coming to know about the death of sole Respondent, three petitions were filed on behalf of the appellants under Order 22 Rule- 4, Order 22 Rule-9 of the Code of Civil Procedure and Section 5 of the Limitation Act. He has pointed out that on 16.08.2008, three petitions were filed. Despite the fact that petitions were on record, no order was passed by the court below and it was indicated that the appellants had not taken any step for substituting the legal heirs of the sole plaintiff- respondent. Learned counsel for the appellants relying on an order passed by this Court reported in 2009 (3) PLJR 555 ( Kashi Nath Dubey & Ors Vs. Shanti Pandey ) submits that only on the ground of delay in filing the 3 substitution petition, the appeal filed by the defendants – appellants against the Judgment and Decree for declaration of title was not at all reasonable to be rejected. He further submits that the court below was required to hear the appeal on merit and decide the same instead of harping on the hyper technical ground. Sri Awadhesh Kumar Pandey, learned counsel for the Respondent has vehemently opposed the present appeal. It was submitted that the sole Respondent died on 20.3.2005 and it was the appeal of the appellants and, as such, the appellants were required to take immediate steps for substituting the legal heirs of the Respondent. However, they did not take any step. Subsequently, on 12.2.2008 learned counsel appearing on behalf of sole Respondent brought on record the death Certificate of the sole Respondent and also made it clear that no step has been taken by the appellants for substitution of the sole Respondent. It was further submitted that the impugned order itself indicates that even learned counsel for the appellants was not aware regarding filing of substitution petition. I have also perused the materials available on record. The ordersheet in T.A.No. 82 of 2001/ 25 of 2007 as well as record makes it clear that on 16.8.2008, the petition for substitution as well as for setting aside the abatement along with the limitation petition was filed. It is true that no order was passed on such petition. However, fact remains that prayer was already made on behalf of the appellants by way of filing the aforesaid petitions. Accordingly, the court below was required to examine the same and pass appropriate order. Moreover, for the ends of justice, the Court is of the opinion that without hearing the appeal on merit, it was not 4 advisable to reject the prayer for time and declare the appeal as abated, whereas on record, petition for substitution, setting aside the abatement as well as limitation were already on record. In view of the facts and circumstances, the impugned order is set aside. The matter is remitted back to the court below. It is expected that the court below will hear both the parties on petitions filed by the appellants on 16.8.2008 under Order 22, Rule 4, Order 22, Rule 9 of the Code of Civil Procedure and petition filed under Section 5 of the Limitation Act. Since the appeal was pending in the court below since 2001, it is directed that both learned counsel for the appellants as well as Respondent shall appear before the court below and after hearing the parties, the court below will pass appropriate order in accordance with law on the aforesaid petitions within a period of two months from the date of receipt/production of a copy of this order. With above observation and direction, the appeal stands allowed. Office may take steps for remitting back the lower court record. NKS/- ( Rakesh Kumar, J. )