IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Review No. 121 of 2010. Date of decision: 29.07.2011. Roshni Devi. …..Respondent/ Defendant. Versus Raja Ram. .….Petitioner/ Plaintiff. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Petitioner/ : Mr. N.K.Thakur, Advocate. Plaintiff. For the Respondent/ : Mr. K.D.Sood, Advocate. Defendant Roshni Devi. Kuldip Singh, Judge (Oral) . This petition has been filed by plaintiff for reviewing judgment dated 30th September, 2010, passed in RSA No. 30 of 2000. It is contended that defendant No. 7 Kesari Dass had died when the matter was pending before the learned trial Court in the year 1986. The parties in the judgment are referred to as plaintiff and defendants. The operative part of the judgment dated 30th September, 2010, is as follows:- “The result of the above discussion, the appeal is allowed, the judgment, decree dated 8.10.1999 passed by learned Addl. District Judge (1) Kangra at Dharamshala (Camp at Una) in Civil Appeal No. 169 of 1992 and the judgment and decree dated 25.8.1992 passed by learned Sub Judge 1st Class (1), Amb, District Una in Civil Suit No. 357 of 1985 are set-aside. The suit is remanded to the trial court. The suit is very old, therefore, the learned trial court is directed to decide the suit afresh along with the question of abatement of suit on account of death of Kessari Dass within a period of six months from the date of receipt of record of the suit. The parties through their counsel are directed to appear Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 before the learned trial court on 22.10.2010. The record be sent back immediately to the trial court so as to reach well before the date fixed. No costs.” 2. The plaintiff has filed the review petition on the ground that, no doubt, the defendant No. 7 has died in the year 1986 when the matter was pending in the trial Court, but an application under Order 22 Rule 4 (4) CPC was allowed by the trial Court on 20th October, 1989 and the plaintiff was exempted from bringing on record legal representatives of defendant No. 7. The suit was decreed on 25.08.1992. The defendant No.1 filed an appeal against the judgment, decree dated 25.08.1992. In the appeal, the defendant No.1 took the objection by filing application that the defendant No. 7 had died when the matter was pending before the trial Court and his legal representatives were not brought on record and, therefore, the suit had abated and prayed for acceptance of appeal which was filed before the learned lower Appellate Court. This application was dismissed on 15.11.1997 by the learned Additional District Judge (1), Kangra. The appeal was dismissed by the learned lower Appellate Court on 08.10.1999. 3. Thereafter, the defendant No.1 filed second appeal and in the second appeal again the contention was raised that the legal representatives of defendant No. 7 Kesari Dass were not brought on record, the defendant No. 7 had died when the matter was pending in the trial Court. This Court took the view that since Kesari Dass had died when the matter was pending in the trial Court, therefore, the question of abatement will be considered by the trial Court only. It is significant to note here that none of the parties brought to the notice 3 of this Court at that time that an application under Order 22 Rule 4 (4) CPC has already been allowed by the trial Court on 20th October, 1989 exempting plaintiff from bringing on record legal representatives of defendant No. 7. 4. Now in the review petition, it has been contended that the plaintiff has already been exempted by trial Court vide order dated 20th October, 1989, for bringing on record legal representatives of defendant No. 7, therefore, there is no question of abatement of the suit. This Court has passed the judgment dated 30th September, 2010 without considering this fact. It has been fairly submitted on behalf of the plaintiff that the fact that application under Order 22 Rule 4 (4) CPC was allowed by the trial Court on 20th October, 1989, was not brought to the notice of this Court when the judgment dated 30th September, 2010, was dictated in the open Court. 5. The learned counsel for the defendant No.1 has stated that abatement is automatic, the order dated 20.10.1989 has no bearing on the abatement of the suit. He has supported judgment dated 30.09.2010. He has opposed review of judgment dated 30.09.2010. The fact remains that the plaintiff was already exempted by the trial Court from brining on record the legal representatives of defendant No.7. In Kuldeep Singh & Ors. Vs. Ram Devi & Ors. I.L.R. (Himachal Series) 1995 (HC) (2) (1305), it has been held that application under Order 22 Rule 4 (4) CPC can be filed at any stage even after the abatement. In that case, the application under Order 22 Rule 4 (4) CPC was allowed by the High Court even though the death had taken place when the matter was pending in the trial Court. 4 The judgment dated 30.09.2010 was passed without considering the fact that the plaintiff had already been exempted from bringing on record legal representatives of defendant No.7. In these circumstances, now there is no question of considering abatement by the trial Court, hence petition deserves to be allowed. The judgment dated 30th September, 2010, is reviewed and recalled. CMP No. 1222 of 2010 is also disposed of in view of disposal of the main matter. July 29, 2011. (Kuldip Singh), ( krt) Judge.