1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 123 OF 2008 Madhukar s/o. Sakharam Sulakhe, R/o. 104, Shivkrupa, Panchali, Near Ram Mandir, Trumbkeshwar, Tq. Trumbkeshwar, Dist. Nasik. ....Applicant. Versus 1. Uttam s/o. Bhimshankar Sulakhe, R/o. Fulsawangi, Tq. Georai, Dist. Beed. At present Near Balareshwar Ganesh Mandir, Behind Kushswarta, Gangaghat, Shrikshetra Trambakeshwar, Tq. Trumbkeshwar, Dist. Nashik and others. ....Respondents. Mr. Vivek Dhage, Advocate for applicant. Mr. S.V. Gangapurwala, Advocate for respondent No. 1. CORAM: R.K. DESHPANDE, J. DATED: 7th November, 2009. ORAL ORDER : 1. This civil revision application challenges the order dated 19.8.2008, passed by the learned Civil Judge, Junior Division, Georai below Exh. 45 in MCA No. 92/2006, rejecting the objection raised by the original defendant No. 4 (non applicant No. 3 in MCA No. 92/2006) to the maintainability of the MCA No. 92/2006, which is an application for setting aside the abatement. MCA No. 92/2006 filed by the respondent 2 No. 1 Uttam sought setting aside of the abatement of Regular Civil Suit No. 308/2000, which stood abated on 25.7.2001 as a result of the death of the sole plaintiff Kamlabai long back. In MCA No. 92/2006 the respondent No. 1 Uttam alleged that he had filed the counter claim in the said civil suit and according to him, the right to sue survives in him to proceed with his counter claim and simply, because the plaintiff Kamlabai has died, that would not cause the abatement of his counter claim. 2. The learned Civil Judge, Junior Division Georai rejected the objection raised by the present applicant on the ground that the delay caused in filing an application for setting aside the abatement has been condoned and Regular Civil Suit No. 308/2000 was filed for partition, wherein the respondent No. 1 Uttam was one of the defendant, who had filed the counter claim. The Trial Court held that the respondent No. 1 Uttam has right to proceed with his counter claim against the other defendants. It is further held that the provisions of Order 22, Rule 9 (1), Civil Procedure Code, are not applicable to the case in hand. 3. I have perused the order of abatement of suit, passed on 25.7.2007. There is no order of abatement of the counter claim and hence, there was no question of making an application for setting aside the abatement of suit. Simply because the sole plaintiff Kamlabai has died and the legal representatives of the sole plaintiff are not brought on 3 record, that will not abate the counter claim filed by the respondent No. 1 Uttam. It is an undisputed position that the defendant Nos. 2 to 4 are the legal representatives of Kamlabai. Shri. Gangapurwala states that the pursis has been filed in the said proceeding on 6.10.2009 to the effect that the defendant Nos. 1 to 3 in the MCA No. 92/20006 are the only legal heirs of the deceased Kamlabai and therefore, there is no question of bringing the legal heirs of Kamlabai on record. What are the consequences of filing such pursis on the contention that no relief as was prayed for by Kamlabai can be granted, shall be a matter of consideration by the Trial Court in its due course. In view of this, the right to proceed with the counter claim made by the respondent No. 1 survives. 4. Shri. Dhage, the learned counsel for the applicant has invited my attention to paragraph No. 3 of the order dated 30th April 2008 passed by this Court in Writ Petition No. 2042/2008 with Writ Petition No. 2250/2008, wherein Uttam was respondent No. 1 in Writ Petition No 2042/2008 and he was the petitioner in Writ Petition No. 2250/2008. In para 3 of the said order, the statement made on his behalf is recorded that an application shall be filed in the proceeding for bringing the legal representatives of Kamlabai on record. On the basis of said statement, an order was passed, in case such application is filed, the Trial Court shall consider the same on its own merit. In view of above position, the statement is of no consequence. So far as the applicability of the 4 provisions of Order 22, Rule 9 (1) is concerned, the Trial Court has rightly held that the said provision is not applicable in the instant case. 5. In view of above, the respondent No. 1 Uttam shall be at liberty to proceed with his counter claim and the effect of filing pursis dated 6.10.2009 by him, shall be considered by the Trial Court in its due course. In the result, there is no substance in the instant civil revision application. The same is, therefore, dismissed. The Trial Court shall proceed to decide MCA No. 92/2006 without being influenced by any of the observations made above as this order considers only preliminary objections raised to the tenability of the application. [R.K. DESHPANDE, J.] ssc/cra123.08