IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No. 192 of 2011 Date of Decision: 2nd December, 2011. _________________________________________________________ Smt. Shiv Dei widow of Shri Narain Lal, resident of Village Tarandol, Illaqua Hatli, Sub-tehsil Baldwara, District Mandi, Himachal Pradesh. ….Appellant. Versus 1. Gian Chand, 2. Birbal Singh, 3. Tek Chand, 4. Kashmir Singh, All sons of Lashkari, resident of Village Tarandol, Illaqua Hatli, Sub- Tehsil Baldwara, District Mandi, H. P. ……Respondents. 5. Shri Lashkari Ram son of Shri Surat Ram, resident Tarandol, Illaqua Hatli, Sub Tehsil Baldwara, District Mandi, H.P. …Proforma Respondents. First Appeal under Order 43(1)(w) of the Code of Civil Procedure. Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the Appellant: Mr. G.R. Palsara, Advocate For the respondents: Mr. Lalit K. Sharma, Advocate Dev Darshan, J. (oral) This appeal has been preferred by the appellant herein against the order passed by the learned Presiding Officer, Fast Track Court, Mandi allowing the review petition instituted by the petitioner before the learned Court below. 2. The petitioners before the learned court below (respondents herein) had instituted a review petition against the order 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes. 2 passed by the learned Court below holding that the appeal has abated as a whole. The appellants and others filed an appeal against order dated 21.3.2001 passed by the learned Sub Judge 1st Class, Sarkaghat in Civil Suit No. 178 of 1998 titled Shiv Dei versus Ramesh and others. During the pendency of the appeal Ramesh died on 6.4.2004 and no steps were taken to bring on record his legal representatives. An application under Order 22, Rule 3 of CPC was filed on 30.10.2004 and an application under Section 5 of the Limitation Act was filed on 1.8.2005. These were dismissed on 10.10.2007 by holding that no sufficient grounds for condonation of delay had been made out. An appeal was preferred in this Court against that order. The case was remanded to the trial Court. When the case was taken up, the learned Court considered the entire material afresh to ascertain as to whether the appeal abates as a whole or survives. On this question, the learned Court found that even if it is assumed that one of the appellants had died, all the appellants had common interest, the appeal could not abate on the facts of the appeal as there was adequate representation of the estate of the deceased. For this learned Court had placed reliance on the decision of the Supreme Court in Sardar Amajit Singh Kalra (Dead) by LRs and others v. Pramod Gupta (Smt.) (sdead) by LRs and others 2003(3) SCC 272. The Court holds that there was adequate representation of the estate of the deceased and in that event it could not be said that the application is time barred. 3. Learned counsel appearing for the appellant urges that the order is wrong and against the law. After having gone through the facts of the case, I do not find any sufficient grounds to interfere in the order passed by the learned trial Court. Once having held that there was 3 adequate representation of the estate of the deceased, there could be no question about the appeal abating as a whole. In case there was some delay in bringing on record the legal representatives of the deceased, in this situation, the Court could take a liberal approach which he did in the present case more especially when there was adequate representation of the estate of the deceased. There is no merit in this appeal which is accordingly rejected. No order as to the costs. 4. All miscellaneous applications also stand disposed of. ( Dev Darshan Sud), 2nd December, 2011. Judge (jai)