IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.194 of 2009 ***** 1. AMBIKA PRASAD MISHRA @ AMBIKA MISHRA, 2. Ram Prasad Mishra and 3. Tapeshwar Mishra, all sons of late Kamal Nath Mishra @ Sri Krishna Mishra, R/o Village + P.O. – Kasia, P.S. – Dumraon, Distt. Buxar …..Defendant O.P. 1st Set/ Petitioners Versus 1. SATISH MISHRA @ BHAWANICHANDRA MISHRA, 2. Bagesh Mishra, 3. Ghanshayam Mishra, 4. Tripurari Mishra, all sons of Late Risikesh Mishra …………Plaintiff / Opposite Party 1st Set, 5. Radha Raman Mishra and 6. Ganesh Dutt Mishra, both sons of Late Achutanand Mishra, all residents of Village + P.O. – Kasia, P.S. Dumraon, District - Buxar …Plaintiff… O.P. 2nd set/ Opposite Party 2nd Set. ----------- 2. 05.02.2009. Heard Mr Ashutosh Ranjan Pandey, learned counsel for the petitioners. The Defendants – Petitioners are aggrieved by the order dated 11.12.2008 passed by the First Munsif, Buxar in Title Suit No. 43 of 1988, whereby petition for substituting the names of the heirs and legal representative of the deceased Plaintiffs No. 1 & 2 has been allowed after condoning the delay in filing the application. Learned counsel for the petitioners submits that the suit has already abated under Order XXII, Rule 3 of the - 2 - Code of Civil Procedure as proper steps for bringing on record the heirs and legal representatives of the deceased plaintiffs were not taken within the time. Subsequently, petitions were filed but without any prayer for setting aside the abatement. Thus, the contention is that the court below ought to have rejected the prayer for substitution in the absence of a proper prayer for setting aside the abatement. I do not find any force in the contention raised on behalf of the petitioners as such technical objection should not come in the way of doing justice. The Supreme Court in K. Rudrappa V. Shivappa, reported in AIR 2004 SC 4346, while deciding the matter wherein also a petition for substitution was filed belatedly along with limitation petition without making prayer for setting aside the abatement, has decided as under:- “10. …….. In such circumstances, in our opinion, the learned counsel for the appellant is right in submitting that a hypertechnical 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 - 3 - 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.” I do not find any jurisdictional error or illegality in the impugned order dated 11.12.2008 warranting interference by this Court in its revisional jurisdiction. The Civil Revision application is dismissed. dk ( Dr. Ravi Ranjan, J. )