IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1806 of 2008 1. CHANDRA BHUSAN KISHORE. 2. RAM CHANDRA SINGH. 3. RAM BRICHH SINGH, SONS OF LATE GOPAL SINGH. 4. RAJENDRA SINGH @ RAJENDRA PRASAD SINGH. 5. DEVENDRA PRASAD SINGH @ DEVENDRA SINGH. SONS OF LATE SHREE KRISHNA DEO SINGH. 6. RAMANUJ SINGH, SON OF LATE PARMESHWAR SINGH. ALL RESIDENTS OF VILLAGE-MANAINI, POLICE STATION-WAZIRGANJ, DISTRICT-GAYA. ………………………………(PLAINTIFFS)-PETITIONERS. Versus 1. SHRI PARASH NATH SINGH. 2. SHRI ANIL KUMAR SINGH, SONS OF LATE SUKHDEO SINGH. 3. SMT. SUDAMA DEVI, WIDOW OF LATE SUKHDEO SINGH. ALL RESIDENTS OF VILLAGE-MANAINI, POLICE STATION-WAZIRGANJ, DISTRICT-GAYA. 4. SMT. KAMLA DEVI, WIFE OF MADAN SINGH AND DAUGHTER OF LATE SUKHDEO SINGH, RESIDENT OF VILLAGE-HADIYA, POLICE STATION- NARDIGANJ, DISTRICT-NAWADA. 5. SMT. URMILA DEVI, WIFE OF PINTU KUMAR AND DAUGHTER OF LATE SUKHDEO SINGH, RESIDENT OF VILLAGE-DIRI, POLICE STATION-RAJAULI, DISTRICT-NAWADA. 6. SMT. MIRA DEVI, WIFE OF BIPIN KUMAR AND DAUGHTER OF LATE SUKHDEO SINGH, RESIDENT OF VILLAGE-CHANDIPUR, P.O. MAKANPUR, VIA- WARSALIGANJ, DISTRICT-NAWADA. 7. JAI SINGH. 8. BIJAY SINGH, SONS OF LATE DASO SINGH, RESIDENTS OF VILLAGE-MANAINI, POLICE STATION-WAZIRGANJ, DISTRICT-GAYA. 9. NITU DEVI, WIFE OF BHOLA SINGH AND DAUGHTER OF LATE DASO SINGH, RESIDENT OF VILLAGE- GONI, POLICE STATION-BHADOKHRA, DISTRICT- NAWADA. 2 10. JUBLI DEVI, WIFE OF LAL SINGH AND DAUGHTER OF LATE DASO SINGH, RESIDENT OF VILLAGE- SAHAJPURA, POLICE STATION-NARDIGANJ, DISTRICT-NAWADA. 11. KUNTI DEVI WIFEOFNIRBHAY SINGH,RESIDENT OF VILLAGE AMARPUR,POLICE STATION MAKHDUMPUR, DISTRICT JAHANABAD, 12. PUSHPI DEVI WIFE OF VIJAY SINGH, RESIDENT OF VILLAGE NARHAT, P.S. NARHAT, DISTRICT NAWADA 13. LIMA DEVI, WIFE OF RAMAKANT SINGH, RESIDENT OF VILLAGE AMARPUR, P.S. MAKHDUMPUR, DISTRICT NAWADA. 14. SHAILI DEVI, WIFE OF BHUSHAN SINGH, RESIDENT OF VILLAGE GOPALPUR, P.S. MUFASIL, HAHARPAR, DISTRICT NAWADA 15. SRI GAURI SHANKAR @ RAM RATAN SINGH 16. RAJIV KUMAR, SONS OF LATE SAHDEO SINGH, RESIDENT OF VILLAGE MANAINI, P.S. WAZIRGANJ, DISTRICT GAYA 17. SHREE OM PRAKASH SINGH 18. SHREE AWADHESH SINGH, SONS OF LATE DASRATH SINGH, RESIDNETS OF VILLAGE MANAINI P.S. WAZIRGANJ, DISTRICT GAYA ….. DEFENDANTS … OPPOSITE IST PARTY 19. NAWAL KISHROE SINGH , SON OF LATE SHREE KRISHNADEO SINGH, RESIDNET OF VILLAGE MANAINI, P.S. WAZIRGANJ, DISTRICT GAYA …… PLAINTIFF …. OPPOSITE 2ND PARTY For the Petitioners : Mr. Ramesh Jha, Advocate Mr. Jitendra Kishore Varma, Amicus Curiae ----------- 9 26.11.2010 Heard learned counsel for the petitioners 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 3 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 petitioners does not contest the stamp report. Mr. Varma has placed reliance upon decisions of this Court rendered Ram Kumar Agarwala and another v. 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. 2, namely, Daso Singh, 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 petitioners and also that the 4 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 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 petitioners also accepts that proposition. I find force in the submission made by Mr. Varma and the petitioners. 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 5 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 petitioners, 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. Accordingly, this civil revision is dismissed as withdrawn with a liberty to the petitioners 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 petitioners 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.)