IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2271 of 2007 MD. ISA Versus IDRIS & ORS ----------- 2. 26.11.2008 Heard counsel for the petitioner. The court below by the impugned order has rejected the application of the petitioner seeking abatement of the suit on the ground that defendant no. 35 Mojibur Rahman has died on 14.4.2007 and was not substituted by the plaintiff by bringing his heirs on record. It is undisputed that at one stage the hearing had concluded and after the parties have also completed their arguments the case was posted for judgment which was to be pronounced on 26.7.2007. This fact is clear from the application filed by the petitioner before the court below. The submission of Mr. Najmul Hoda that subsequent to the date of 26.7.2007 the case was again taken up for hearing after deferring with delivery of judgment would make the provision of Order 22 Rule 6 inapplicable in the facts of the present case is to be noticed for its being rejected. Order 22 Rule 6 C.P.C. reads as 2 follows: “No abatement by reason of death after hearing.- Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place.” In terms of the aforementioned provisions the first question would be when had the death of defendant no.35 become effective to make the suit abate in the event of his non-substitution. The obvious answer would be that since the date of death was spelt out by the petitioner in his application being 14.4.2007 abatement could have only taken place after 14.7.2007, 90 days being the period of limitation for making substitution. The next question would be when was the case fixed for judgment which was to be 3 delivered on 26.7.2007. Mr.Hoda is not in a position to give the date, but then if it is of any date even on or after 14.7.2007 obviously Order 22 Rule 6 will come in the way of plaintiff. Unfortunately vagueness still continues either in their pleadings or in the argument, inasmuch as it has also not been explained that when hearing in the suit meaning thereby the evidence was closed by the parties or when arguments were concluded so that the court had fixed the date as 26.7.2007 as the date of judgment. In that view of the matter, applicability of Order 22 Rule 6 cannot be altogether ruled out. The last submission of Mr. Hoda that since the impugned order would go to show that the case was again reverted back to the stage of hearing, that will make non- substitution of defendant no.35 fatal and in fact would lead to abatement of the suit as to be only noted for its being rejected. Once the case was fixed for judgment after conclusion of hearing and that the death took place in the interregnum period the protection of Order 22 Rule 6 will always be available and cannot be ruled out only 4 because the case had been taken up for rehearing. Mr. Hoda in fact is not in a position to say as to what was the situation which led to reopening the case for rehearing nor he is in a position to disclose the date of such order on which such rehearing was fixed after recalling the suit from the stage of delivery of judgment. That being so, the cause of substantive justice must prevail so as to rule out dismissal of the suit on a technical ground and that too when this Court is of the view that it was well protected within the four corners of the Order 22 Rule 6 C.P.C.. This Court for the reasons mentioned above does not find any merit in this application and accordingly, this civil revision application is dismissed. (Mihir Kumar Jha,J.) Surendra/