IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1732 of 2006 RAJESH KUMAR SINHA, SON OF LATE SADA NAND PRASAD SINHA, RESIDENT OF MOHALLA-A.G. COLONY, P.S.- SASTRINAGAR, DISTRICT PATNA --------PETITIONER/DEFENDANT. Versus SMT.LEELA DEVI WIFE OF LATE BRAJ KISHOR THAKUR, RESIDENT OF MOHALLA-SHANTI PATH, NAYA TOLA, YARPUR, P.S. – GARDANI BAGH, DISTRICT – PATNA --------OPPOSITE PARTY-PLAINTIFF. ----------- For the petitioner : Mr. Rajeev Prakash, Advocate. For the opposite parties : None. ------ 3. 26/2/2009 Heard Mr. Rajeev Prakash, learned counsel for the petitioner. The defendant-petitioner is aggrieved by the order dated 3.7.2006 passed by the Sub Judge-VI, Patna, in Money Suit No. 43 of 1999 whereby a petition filed by the opposite party for her substitution in place of deceased husband has been allowed. Learned counsel for the petitioner submits that the plaintiff died on 2.9.2004 and his son namely, Braj Kishore Thakur filed a petition for his substitution in place of the deceased plaintiff well within time. Subsequently, aforesaid Braj Kishore Thakur has also died on 4.1.2005 and no order could be passed on the petition aforesaid for his substitution in place of his father in the suit. His wife subsequently filed a petition for her substitution in place of her husband, namely, Braj Kishore Thakur, who was the proposed legal representative of the plaintiff, along with a limitation petition. Learned counsel for the - 2 - petitioner submits that after the death of the original plaintiff, even though a petition for expunging his name and substituting his legal representative was filed by his son namely, Braj Kishore Thakur well within time under Order XXII, Rule 3. Suit has abated because no order could be passed by the court below on his petition and subsequently he also died. Learned counsel for the petitioner further submits that after the death of aforesaid Braj Kishore Thakur, the proposed legal representative, on 4.1.2005, no petition for bringing on records his legal representative, could be filed within time and as such, the suit has abated. Subsequently, such petition was filed by his widow wherein she made a prayer that Braj Kishore Thakur, the deceased aforesaid, had died leaving behind herself and three daughters and prayer was made for their substitution in his place. A petition for condoning the delay in filing of such petition was also filed by her. Learned counsel for the petitioner next submits that since there was no prayer for setting aside the abatement, the court below ought to have rejected the same. The submission is that the court below without passing an order for setting aside abatement has allowed the substitution petition after condoning the delay, which order is liable to be quashed. I do not find any force in the submission of learned counsel for the petitioner. In my opinion, such a hyper-technical objection should not come into the way of doing justice. In this - 3 - regard, it would be apt to refer to a decision of the Apex Court in K. Rudrappa, Vrs. Shivappa, reported in AIR 2004 Supreme Court, page 4346. Relevant passage of the aforesaid decision is quoted as under:- “10. Having heard learned counsel for the parties, in our opinion, the appeal deserves to be allowed. The case of the appellant before the District Court was that he was not aware of the pendency of the appeal filed by his father against the order passed by the Tehsildar. The father of the appellant died in June, 1994 and the appellant came to know about the pendency of appeal somewhere in September, 1994 when he received a communication from the advocate engaged by his father. Immediately, therefore, he contacted the said advocate, informed him regarding the death of his father and made an application. In such circumstances, in our opinion, the learned counsel for the appellant is right in submitting that a hyper-technical view ought not to have been taken by the District Court in rejecting the application inter alia observing that no prayer for setting aside abatement of appeal was made and there was also no prayer for condonation of delay. In any case, when separate applications were made, they ought to have been allowed. In our opinion, such technical objections should not come in doing full and complete justice between the parties. In our considered opinion, the High Court ought to have set aside the order passed by the District Court and it ought to have granted the prayer of the appellant for bringing them on record as heirs and legal representatives of deceased Hanumanthappa and by directing the District Court to dispose of the appeal on its own merits. By not doing so, even the High Court has also not acted according to law.” - 4 - Thus, in my opinion, there is no jurisdictional error in the impugned order. As a result, this Civil Revision application is dismissed. S.Ali (Dr. Ravi Ranjan, J.)