LALLU PRASAD JAISWAL S/O LATE SHRI RAMESHWAR PRASAD JAISWAL, AGED ABOUT 62 YEARS, R/O LAWAN ROAD BALODA BAZAR, TEHSIL AND DISTRICT BALODA BAZAR (CHHATTISGARH) Vs. SMT. MANTORA BAI WD/O LATE SHRI MOTILAL JAISWAL, AGED ABOUT 55 YEARS, R/O VILLAGE BALTARA, DISTRICT BILASPUR (CHHATTISGARH)

JUDGEMENT

(1.) - The short question for consideration is whether the First Appellate Court is justified in rejecting an appeal filed under Order 43, Rule 1 (k) of the Code of Civil Procedure (for short 'the CPC') against an order rejecting application for setting aside abatement and dismissing the suit as abated

(2.) Civil Suit No.16-A/1998 was filed by plaintiff Smt. Janak Dulari against defendants Mantora Bai & others. During pendency of the suit, plaintiff Smt. Janak Dulari died on 25-09-2008. Her Legal Representative applicant herein & another filed an application under Order 22, Rule 3 and Order 22, Rule 9 of the Civil Procedure Code before the trial Court on 05-05-2009 inter-alia stating that he was not aware of the suit having been instituted by his mother against defendants Mantora Bai & others about it's pending and when he visited the office of his counsel in connection with Civil Suit No.11-A/2002 (Malti Bai Vs. Janak Dulari) , then only he was informed by his counsel that suit filed by his mother Janak Dulari is pending consideration and thereafter immediately, he filed an application for substitution and setting aside for abatement on 05-05-2011. This application was supported by an affidavit and this was opposed by the non-applicants herein by filing reply but the said reply was not supported by affidavit. Trial Court by its order dated 14-09-2012 rejected the application finding no sufficient cause for setting aside the abatement and rejected the application for substitution as well as application for setting aside the abatement and consequently, dismissed the suit as abated.

(3.) Feeling aggrieved against the order dismissing the suit as abated, legal representatives of the original plaintiff preferred a Miscellaneous Appeal before the First Appellate Court. The Appellate Court by impugned order dated 20-03-2015 dismissed the appeal preferred under Order 43, Rule 1 (k) of the Civil Procedure Code holding that the appeal is not maintainable, against which this revision has been preferred.