RFA No.211 of 1998 17.6.2009 Present:- Mr. Avnish Bhardwaj, vice Mr. Ajay Kumar , counsel for the appellant. None for the respondents. CMP(M) No.878 of 2007 and RFA No.211 of 1998 The appellant has filed an application under Order 22 rules 4,9 read with Section 151 CPC and Section 5 of the Limitation Act, 1963 for condonation of delay, setting aside abatement of appeal and bringing on record legal representatives of respondent No.2 Shanti Devi Jaswal died on 2.12.2000 and respondent No.3 Parveen Kumar Sharma died on 3.11.1994. According to office the application is barred by 6 years 6 months and 4 days so far it relates to respondent No.2 and the application is barred by 12 years 7 months and 2 days for respondent No.3. Prem Nath Jaswal respondent No.1 one of the legal representative of Shanti Devi Jaswal is already on record. Therefore, appeal has not abated so far death of Shanti Devi Jaswal is concerned. According to appellant, respondent No.3 Parveen Kumar Sharma had died on 3.11.1994. The suit was filed on 4.9.1992 and was decided on 9.1.1998, hence death of respondent No.3 Parveen Kumar Sharma took place during the pendency of the suit. In Sher Singh & others vs. Raghu Ram & others 1981 SLC 25(HP) it has been held that an application for setting aside the abatement and substituting the heirs of the deceased defendant should have been made and dealt with by the trial Court in which the abatement occurred. In Jagdish Prasad and others vs. Sukh Ram (1999) 1 SCC 158 the application was filed for bringing on record the legal representatives of deceased Gulabi Devi who died on 7.2.1997 when the matter was pending before the High Court. The Supreme Court has observed that since Gulabi Devi died when the matter was pending before the High court, the application for bringing on record her legal representatives was not maintainable in the Supreme Court. In the present case it has not been pointed out by learned counsel appearing on behalf of the appellant that the estate of respondent No.3 Parveen Kumar Sharma continued to be represented in the suit after his death. The question of abatement of suit in view of death of Parveen Kumar Sharma can be determined only by the trial Court. In these circumstances, judgment, decree dated 9.1.1998 passed by learned District Judge, Solan in Civil Suit No.2-S/1 of 1992/1997 are set aside. The case is sent back to District Judge, Solan, who may retain the suit file himself or transfer/ assign the suit to such Court having jurisdiction to try the suit. The appellant is given liberty to approach the trial court for setting aside the abatement and bringing on record legal representatives of deceased Shanti Devi Jaswal and Parveen Kumar Sharma. In case appropriate application (s) are filed by the appellant in the trial Court then the trial court shall decide such application(s) in accordance with law. The appellant through its counsel is directed to appear before the learned District Judge, Solan on 6.7.2009. The record of the trial Court be remitted to district Judge, Solan immediately so as to reach before the date fixed. The application as well as appeal are disposed of accordingly. (Kuldip Singh), June 17, 2009. Judge (sks)