CMA-210/09 - Lal Chand Vs. LRs of Hari Ram. Judgment dt.17.7.09 1/3 S.B. CIVIL MISC. APPEAL NO.210/2009 Lal Chand Vs. LRs of Hari Ram. Date of order : 17th July, 2009 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. R.K. Singhal for the appellant. Mr. Kishan Bansal for the respondents. ------- 1. This appeal is directed against the order dated 4.2.2009 whereby the learned court below rejected the application under Order 22 Rule 4 C.P.C. read with Order 22 Rule 9 C.P.C. 2. According to the learned court below since the application under Order 22 Rule 9 C.P.C. was filed along with the application under Section 5 of the Limitation Act belatedly for taking on record the legal representatives of the respondent Hari Ram, who expired on 24.4.2006, on record but the said application was filed on 26.10.2007, therefore, the appeal had abated. 3. Learned counsel for the appellant Mr. R.K. Singhal CMA-210/09 - Lal Chand Vs. LRs of Hari Ram. Judgment dt.17.7.09 2/3 submits that the knowledge of death of said Hari Ram came to the knowledge of the appellant only on 22.11.2006 and immediately thereupon the application under Order 22 Rule 4 C.P.C. was filed by the plaintiff appellant on 5.12.2006. However, inadvertently the mention of provisions of Order 22 Rule 9 C.P.C. for setting the abatement against the said deceased person Hari Ram was not mentioned in the said application and thereafter again a separate application was filed for setting aside the abatement against the said respondent along with the application under Section 5 of the Limitation Act and the bonafide error under the misconception happened and the same deserves to be condoned in the facts and circumstances of the case as the said suit was decreed against the present appellant and a serious prejudice has been caused to the petitioner, if the appeal is not heard on the merits. 4. Learned counsel for the respondents, however, opposes these submissions and prays for dismissal of the present appeal. 5. Having heard learned counsels and upon perusal of the impugned order, this Court is of the opinion that once the application CMA-210/09 - Lal Chand Vs. LRs of Hari Ram. Judgment dt.17.7.09 3/3 under Order 22 Rule 4 C.P.C. was filed within 90 days of the knowledge of the death of said Hari Ram, the appropriate orders on that appeal deserved to be passed by the learned appellate court and even though the application under Order 22 Rule 9 C.P.C. was filed belatedly along with the application under Section 5 of the Limitation Act. The reason for delay in filing such application under Order 22 Rule 9 C.P.C. appears to be bonafide and, therefore, in the facts and circumstances of the case, the trial court ought to have set aside the abatement and heard the appeal on merits. 6. Consequently, this appeal is allowed and the impugned order dated 4.2.2009 is set aside and the appeal is restored to the Court of learned ADJ (Fast Track) No.2, Hanumangarh for consideration afresh in accordance with law. [ DR. VINEET KOTHARI ], J. item No.S/2 babulal/