IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1009 of 2008 SHAILENDRA PATHAK Versus SRI SUBODH PATHAK & ORS ----------- 2 15.07.2008 Heard counsel for the petitioner. In the opinion of this Court, the impugned order allowing substitution after condoning the delay and setting aside the abatement, does not suffer from any jurisdiction error. It is not in dispute that it was the father of the petitioner who had filed Title Suit No. 9 of 1985 which was decreed on 10.4.1991 and as against which an appeal being Appeal No. 22 of 1991 having been filed by defendant Anirudh Pathak was dismissed for default on 21.1.2004 which le to filing of Misc. Case No. 1 of 2004 for restoration of the appeal. In the aforesaid Misc. Case seeking restoration of the appeal, the applicant Anirudh Pathak had filed an application seeking substitution of Arjun Pathak who is said to have died on 25.7.2002 in course of pendency of the appeal itself. The Court below in fact having gone into the whole aspect of the matter had held that as it was a dispute of family property and non-substitution of Arjun Patkhak would only give rise to further civil litigation, it was thus necessary to decide the dispute on merit which could be 2 done only after restoring the appeal which as noted above was also dismissed for default. Such approach of the Court below, therefore, cannot be said to be vitiated and/or suffering from any jurisdictional error specially when it has given cogent reasons for also condoning the delay in filing of the substitution petition. Such reasons being serious illness of Anirudh Pathak and his son, mostly residing out side Bihar and as such not being in a position to file the substitution in time, were definitely by themselves “sufficient cause” specially when it is found that the appeal was also dismissed only for default and thus giving strength to the plea of Anirudh Pathak not being in village home on account of illness and remaining out side Bihar. The submission of the counsel for the petitioner that Anirudh Pathak and the family members were aware of the death of Arjun Pathak and yet did not take steps for substitution in time in fact has been gone into at length by the Court below in the impugned order which has held that though the substitution petition an application for setting aside the abatement could be dismissed on the ground of technicality but the reasons mentioned in the limitation petition and the petition for setting aside the abatement, could not be totally brushed aside and thus in order to avoid the further litigation giving rise to number 3 of cases it was necessary that the case should be decided on merit instead of technicality. Such reasoned order which would sub-serve the ends of justice need not be interfered by this Court in exercise of its power under Section 115 of C.P.C. specially when this Court does not find any jurisdictional error in the same. Accordingly, this Civil Revision application being devoid of any merit is dismissed. Bibhash (Mihir Kumar Jha, J.)