IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1035 of 2007 PRAMOD KUMAR son of late Digamber Prasad, resident of village Turki Khararoo, Yadav Tola,P.S. Minapur, District Muzaffarpur… …Plaintiff/Petitioner Versus 1. LALBABU RAI son of Ganaur rai, son of ganaur Rai, 2. Nand Kisor Yadav, son of late Musa Rai, both residents of village Turki Khararoo, Yadav Tola, P.S. Minapur, District Muzaffarpur.. Defendant 2nd Party/Opposite Parties For the Petitioner: Mr. K.N. Diwakar, Advocate Mr. Jitendra Kishore Varma, Amicus Curiae ----------- 9 26.11.2010 Heard learned counsel for the petitioner and Mr. Jitendra Kishore Varma, Amicus Curiae, on the point of maintainability of the civil revision. Office, in its revised stamp report, has submitted that in view of the law laid down in the case of Sachida Nand Yadav & ors. V. Dinesh Yadav & ors. (1991 BBCJ, 511), Miscellaneous Appeal would be proper remedy against the impugned order as per the provisions contained in Order XLIII Rule 1(k) of the Code of Civil Procedure (hereinafter to be referred to as “Code”). Learned counsel for the petitioner does not contest the stamp report. Mr. Varma has placed reliance upon decisions of this Court rendered Ram Kumar Agarwala and another v. 2 Buxar Oil and Rice Mills Ltd. (1970 BLJR, 530) and Sachida Nand Yadav & ors. V. Dinesh Yadav & ors. (1991 BBCJ, 511) to impress upon this Court that proper remedy against rejection of a prayer for setting aside the abatement would be preferring an appeal under Order XLIII Rule 1(k) of the Code. In the present case, the substitution petition has been filed for substituting the legal representatives of the deceased defendant no. 1, namely, Dahur Mahto, along with a petition under section 5 of the Limitation Act for condoning the delay in preferring such application. However, the court below has rejected the same on the ground that a prayer for setting aside the abatement has not been made by the petitioner and also that the petitioner was lenient in taking steps for substitution. Mr. Varma places reliance upon a decision of the Apex Court rendered in K. Rudrappa v. Shivappa (AIR 2004 SC, 4346) in this regard. It is submitted that in that case, the Apex Court has held that the order rejecting an application on the ground that no prayer for setting aside abatement by preferring appeal and for condonation of delay was made would not be correct, as such, technicality should not come in the way in doing full justice and, thus, such 3 petition, if there has been any inkling therein regarding explanation of delay, could be considered as a petition for setting aside abatement. Learned counsel for the petitioner also accepts that proposition. I find force in the submission made by Mr. Varma and the petitioner. In view of the aforesaid decision of the Apex Court, the petition filed for substitution under Order XXII Rule 4 of the Code along with petition under section 5 of the Limitation Act for condonation of delay would have a deemed prayer for setting aside the order of abatement, and, thus, the order would be deemed to be an order, whereby a prayer for setting aside abatement has been refused. Therefore, proper remedy against such order would be of preferring an appeal under Order XLIII Rule 1(k) of the Code. As such, Civil Revision would not be maintainable. Learned counsel for the petitioner, in above view of the matter, seeks permission to withdraw the civil revision to prefer an appeal before the court of competent jurisdiction. Permission is accorded. 4 Accordingly, this civil revision is dismissed as withdrawn with a liberty to the petitioner to prefer an appeal before the court of competent jurisdiction. If such appeal is preferred within eight weeks from today along with a petition for condoning the delay, and if a ground is taken by the petitioner regarding bona fide prosecuting this Civil Revision against the impugned order before this Court, then the concerned court shall pass appropriate order in accordance with law. SC (Dr. Ravi Ranjan, J.)