IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1903 of 2007 BABY DEVI & ORS Versus KARI DEVI & ORS ----------- 5 19.12.2008 Heard counsel for thee petitioners. It appears to be rather a slip-shod effort on the part of the court below in rejecting the prayer of the plaintiffs-petitioners as with regard to seeking substitution of the defendant no.2 who is said to have died on 3.10.2005. True it is that the application for substitution of the defendant no.2 was filed on 22.3.2006 i.e. beyond the period of limitation but the court below had to consider as to whether the right to sue still survives before it could have passed an order for abatement of the suit. Apparently, the mother of the defendant no.2 is said to be already on record as defendant no.5 to the suit itself ruling out the possibility of abatement of a suit for partition. As a matter of fact the court below has mechanically proceeded to record abatement of the suit without considering the grounds for the delay of nearly four months in filing of the substitution petition. As all these vital and relevant aspects of the matter have not at all been taken into account this Court would hold the impugned order to be vitiated by 2 jurisdictional error. Consequently the Civil Revision Application is allowed. The impugned order is set aside and the matter is remitted back to the court below to re- consider the prayer of the petitioner for substitution in the light of aforesaid observations and in accordance with law. Rsh (Mihir Kumar Jha, J.)