// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.4809/2004 Bharu Singh S/o Bhanwar Singh and Others Versus Additional District Judge, Chabra District Baran and Others Date of Order ::: 24.04.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Rajesh Kapoor, Counsel for petitioners Shri Manoj Bhardwaj and Shri Sunil Jain, Advocate for Shri J.P. Gupta, Counsel for respondents #### By the Court:- Heard learned counsel for the parties. The sole plaintiff Bhanwar Singh filed a revenue suit for declaration and cancellation of gift-deed wherein an issue was framed and the matter was referred to the Civil Court. During the pendency of the suit, the sole plaintiff Bhanwar Singh died on 26th May, 1993. An application under Order 22 Rule 3 CPC for substitution of his legal representations was filed on 3rd September, 1993 along-with an application under Section 5 of the Limitation Act. The applications were contested by the defendants by filing a written-reply. The trial court, vide its order dated 4th June, 1994 dismissed both the applications. Subsequently, the legal representatives of deceased plaintiff filed another application under Order 22 Rule 9 read with Section 151 of the CPC for setting-aside the abatement, which was also contested by the defendants. The trial court, after // 2 // hearing both the parties, dismissed the said application also vide order dated 20th April, 2000. Being aggrieved with the same, an appeal was preferred but the appellate court also dismissed the appeal vide order dated 30th October, 2003. The aforesaid three orders dated 4th June, 1994, 20th April , 2000 and 30th October, 2003 have been challenged in this writ petition by the legal representatives of the deceased plaintiff. The learned counsel for the plaintiff contended that the sole plaintiff Bhanwar Singh died on 26th May, 1993. The period of limitation for filing the application for substitution of his legal representatives is 90 days and thereafter the application under Order 22 Rule 9 of the CPC could have been filed within a period of 60 days after expiry of the period of 90 days. However, in the present case the application under Order 22 Rule 3 of the CPC along- with the application under Section 5 of the Limitation Act was filed on 03/09/1993 itself. He contended that under bona-fide mistake a prayer could not be made in the application under Order 22 Rule 3 of the CPC for setting-aside the abatement and in its place a separate application under Section 5 of the Limitation Act was filed. The application filed under Order 22 Rule 3 CPC ought to have been treated as under Order 22 Rule 9 CPC also and the same should have been allowed in the facts and circumstances of the present case. However, after dismissal of this application, the legal representatives again filed another application under Order 22 Rule 3 CPC but the same has also been dismissed and the appellate court also dismissed their appeal whereas the Hon'ble Supreme Court in K. Rudrappa v. Shivappa – AIR 2004 SC 4346 , allowed the application under Order 22 Rule 3 CPC, which was // 3 // filed after expiry of the period of limitation, without any prayer for setting-aside the abatement of the appeal therein, on the ground that such technical objection should not come in way of doing justice. This Court in S.B. Civil Writ Petition No.1120/2004 – Mst. Laxmi Devi and Others Vs. Civil Judge (Sr. Div.), Bayana and Others, decided on 23rd April, 2008, considered the aforesaid judgment and took the same view that such technical objection should not come in way of doing justice. He, therefore, contended that the impugned orders be set-aside and the application for substitution of legal representatives of deceased plaintiff be allowed and the trial court be directed to proceed with the suit further in accordance with the law. The learned counsel for the respondents have defended the impugned orders and prayed that the writ petition be dismissed. I have considered the submissions of learned counsel for the parties and examined the impugned orders, referred to above, in the light of their submissions and also the judgments of the Hon'ble Supreme Court and of this Court, as referred above, and after considering the same, I find that the courts below have committed an illegality in dismissing the applications of the petitioners under Order 22 Rule 3 CPC, under Order 22 Rule 9 CPC and the appeal filed against the said order. The Hon'ble Supreme Court has specifically held that such technical objection should not come in way of doing justice. Reference may have to Para 11 of the judgment of the Hon'ble Supreme Court in K. Rudrappa's case (Supra), which reads as under:- // 4 // “11. Very recently, almost an identical case came up for considerations before us. In Ganeshprasad Badrinarayan Lahoti (D) by LRs v. Sanjeevprasad Jamnaprasad Chourasiya and another, Civil Appeal No.5255 of 2004, decided on August 16, 2004, the appellants heirs and legal representatives of deceased Ganeshprasad were not aware of an appeal filed by the deceased in the District Court, Jalgoan against the decree passed by the Trial Court. When the appeal came up for hearing the advocate engaged by the deceased wrote a letter to Ganeshprasad which was received by the appellants and immediately, they made an application for bringing them on record as heirs and legal representatives of the deceased. The application was rejected on the ground that there was no prayer for setting aside abatement of appeal nor for condonation of delay. The appellants, therefore, filed separate applications which were also rejected and the order was confirmed by the High Court. We had held that the applications ought to have been allowed by the courts below. We, therefore, allowed the appeal, set aside the orders of the District Court as well as of the High Court and allowed the applications. In our opinion, the present case is directly covered by the ratio in the said decision and the orders impugned in the present appeal also deserve to be set aside.” In view of the above discussion, the writ petition is allowed. The impugned orders dated 4th June, 1994, 20th April , 2000 and 30th October, 2003, referred to above, are set-aside. The application filed by the petitioners for substitution of legal representatives of the deceased plaintiff Bhanwar Singh is allowed. The legal representatives are taken on the record. The trial court is directed to proceed further in the suit in accordance with the law. Both the parties are directed to appear before the trial court on 26th May, 2008. Costs is made easy. (Narendra Kumar Jain) J. //Jaiman// // 5 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Stay Application No.4088/2004 In S.B. Civil Writ Petition No.4809/2004 Bharu Singh S/o Bhanwar Singh and Others Versus Additional District Judge, Chabra District Baran and Others Date of Order ::: 24.04.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Rajesh Kapoor, Counsel for petitioners Shri Manoj Bhardwaj and Shri Sunil Jain, Advocate for Shri J.P. Gupta, Counsel for respondents #### By the Court:- In view of the order passed in the writ petition itself, the stay application, filed therewith, also stands disposed of. (Narendra Kumar Jain) J. //Jaiman//