St- HIGH COURT OF JUDICATURE CHHATTISGARH: BILASPUR SINGLE BENCH : HON'BLE SHRI S.R. NAYAK, CJ. PETITIONERS (Plaintiffsi Writ Petition No. 4139 of 2005 1. Dropadi Bai, widow of Late Santram Chouhan, aged about 52 years. 2. Shivshankar, son of Late Santram Chouhan, aged about 15 years, 3. Manoj Kumar, aged about 11 years, son of Late Santram Chouhan, 4. Kundan Kumar, aged about 11 years, son of Late Santram Chouhan, 5. Mahaveer, son of Late Santram Chouhan, aged about 05 years, PetiUoner N0.2 to 5 are minors, through their next friend (mother) Smt. Dropadi Bai (i.e. the Petitioner No.1) RESPONDENTS (Defendentsl Vs. 1. 2. Atl are resident of village Rovindvan, Tahsil Bitaigarh, Distt. Raipur (Chhattisgarh) Santosh Kumar, son of Late Mahtar, aged about 30 years. Smt. Sona Bai, widow of Late Mahtar, aged about 50 years, 3. Both are resident of village Rovindvan, Tahsil Bilaigarh, Distt. Raipur (ChhatUsgarh) Dasaram, aged about 50 years, son of Bodhram Sahu, All are resldent of village Rovindvan, Tahsil Bilaigarh, Distt. Raipur (Chhattisgarh) Present: Shri G.S. Agrawal, tearned Sr. Advocate witti Shri K.R. Nair, leamed counsel for the petitioners. Shri Y.C. Sharma, leamed counsel for respondent No.3. cs'7 -^- ORALORDER (Passed on 11'" September, 2006) In a suit for a specific performance when it is pending on Uie file of learned trial Judge, defendant No.2 died. The date of death is not forthcoming. It is stated that defendant No.2 left behind him certain legal representatives of which one was already on record. According to the learned counsel for defendant No.2, the date of death of defendant No.2 was brought to the notice of the learned trial Judge on 11.09.2000 orally, and this fact is recorded In the order sheet of the leamed trial Judge. When the matter stood thus, with considerable delay, the remaining two legal representatives moved two applications, one under Order 22 Rule 4 of Uie Code of Civil Procedure to come on record as legal representatives of deceased defendant No.2 and another under Order 22 Rule 9 to set aside the abatement. The learned trial Judge having opined that ttie applications are banred by time, has dismissed the applications. The aforesaid two legal representatives of fte deceased defendant No.2 feeling aggrieved by the above order of the leamed frial Judge preferred appeal to ttie tearned District Judge, and the learned District Judge by the order impugned in this writ peUtion has dismissed the appeal and confirmed the order of the trial Judge. Hence, this writ petiUon under Artictes 226/227 ofthe ConstituUon of India. (2) I heard leamed counsel for the parties. It is not as if the petitioners herein being legat representatives of the deceased defendant No.^-even knowing the date of death of defendant No.2 and the detaits of the legal representatives left behind him did not take any steps for considerable time. It is not that the learned counsel appearing for the deceased defendant No.2 filed any written report, before the learned trial Judge reporting the death of defendant N0.2 and giving the details of the ;$, %^- "il f legal representatwes lett behind hlm &y defendant No-2. In the ^'4.; -^. -, .:' .•'. 1 1 applicaSons flled by the pelitfoners herein, under Ordw 22 Rule 4 and under Order 22 Rute 9 trf tha CPC, it Is stated that they are illiterate; they "c. -^ ^r^ , /'•/', were not aware ofthe othsr Eegal representatlvas l^t behind by defendant No.2 and they took immediate steps immediately after they came to Ssnow about their details. The Courts have been''!sh6wn tiberal attituds m ths matter of impleading the l<^ai representaUv^'ISa any legal acSon, the reason being that a procadureis essentially Aieantto advance JusUce and 1. notto thwartjustice. Furthermore, it needs to be noticed in this case tiiat &i8 suit as such never abated ftic-tfie simple reasoff-that there were three defendants and even one legai .representaUve of the deceased defendant No.2 was already on record and therafore, the learned trfal <)udge is bound to try suit in accordance with law. 1 am of the consldered bpinion that if the petitteners are not impleaded as legial represeritative <if the deceased defendant No.2, there Is likelihood offailure ofjuatsce. (3) In the (acts and the clrcumstances c? the case, 1 am inclined to exercise the discr^on in (iavour of the peBBonars. In that view of the matter, 1 allow the applicadons flled under Order 22 Rule 4 after allowing application of the petitioners under Order 22 Rule 9 of CPC for setting aside the abatement order. Accordingly, the writ p8SUon is allowed. The impugned order passed by the leamed appellate Judga \s set aside and the applications filed by the petKtonere under Order 22 Rule 4 and under Order 22 Rule 9 are allowed as prayed for, however, subject to the petitioner pa^ng a sum of Rs. 1,50iy- to the teamed counset appearing for respondent No.3 within two weete from today. The peUtioners shall stand impteaded as tegal represwitative ofthe deceased defendant No.2. Sd/- Chief Justice