IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.45 of 2005 SRI KANT PANDY & ORS Versus MOSTT.LAXMI KUER & ORS ----------- 7 07.05.2010 Heard the learned counsel Shri Sunil Kumar No.- 3 on behalf of the appellant and the learned counsel Shri Vijay Shankar Srivastava on behalf of respondent No. 2. In spite of service of notice, respondent No. 1 has not appeared. This Misc. Appeal has been filed by the appellant against the order dated 08.12.2004 passed by the learned Ist Additional District judge, East Champaran, Motihari in Title Appeal No. 64 of 1990 rejecting the petition dated 13.02.2004 under Order 22 rule 3 C.P.C. filed by the appellant Sri Kant Pandey. It appears that Raghunath Pandey, the sole appellant filed Title Appeal No. 64 of 1990. The said Raghunath Pandey, the sole appellant died on 12.11.2003 and, thereafter, one son, Sri Kant Pandey filed an application for substitution on 13.02.2004. The respondents filed a rejoinder application and stated that the appeal has abated and the substitution application is not maintainable because the other legal representatives of the deceased- sole appellant; are not mentioned in the substitution application. On the petition of the respondents, another 2 application was filed by the son of the sole appellant giving the details of the names and addresses of the legal representatives of sole deceased-appellant, Raghunath Pandey. After hearing the parties, by the impugned order, the learned court below found that since the application for substitution was filed on 93rd day, the application was time barred and no application for condonation of delay was filed. In my opinion, the order passed by the court below is against the law. Article 120 of the Limitation Act provides 90 days for filing substitution application from the date of death. If substitution application is not filed within 90 days, the appeal will abate and thereafter, application for setting aside of abatement is required to be filed within 60 days according to Article 121 of the Limitation Act. Thereafter, after 150 days, limitation will start. In other words, if setting aside abatement application is not filed within two months, after abatement, then the person seeking for substitution is required to file an application u/S 5 of the Limitation Act. In the facts and circumstances of the case, therefore, the learned court below was under wrong impression that the appellant was required to file limitation application. In a decision reported in 2009(3) PLJR 555 (Kashinath Dubey & ors. Vs. Shanti Pandey), it has been held that hiper technicality should not come in the way of 3 administration of justice. In the present case, even if there was no application for setting aside abatement, the court could have on oral prayer even set aside the abatement. Considering the above facts and circumstances of the case, the impugned order is set aside. The Misc. Appeal is allowed. The abatement, if any, is set aside. The Title Appeal No. 64/98 is restored to its original file. The substitution application filed by the legal representatives of the deceased-sole appellant is substituted as appellants in place of the deceased-sole appellant. The learned court below shall proceed to decide the appeal on merit according to law in the facts and circumstances of the case. There shall be no order as to costs. AKV/ (Mungeshwar Sahoo,J.)