APPU Vs. SIMJO

JUDGEMENT

(1.) The order impugned in this Civil Revision Petition is an order allowing applications filed by the assignee of the plaintiff, who died pending the suit. The plaintiff died on 5-6-1987. The assignee filed two petitions; I.A. No. 1395/87 and I.A. No. 1396/ 87 on 6-10-1987. I.A. No. 1395/87 was filed under O.22 R.10 and I.A. 1396/87 was to amend the cause title of the plaint. Subsequently he filed I.A. No. 1751/88 to treat the earlier applications; I.A. No. 1395/87 and I.A. No. 1396/87 as applications for impleading and for setting aside abatement of the suit. Considering the circumstances involved in the case, the court below allowed the applications by a common order. This common order is challenged in this Civil Revision Petition.

(2.) Learned counsel for the petitioner submitted before me that the suit abated on 3-9-1987 and he further submitted that the assignee of the property cannot file an application to set aside the abatement when his assignor plaintiff died. For this proposition he has relied on 1976 KLT 263 (Goutami Devi Sitamony v. Madhavan Sivarajan). O.22 R.9 of C.P.C. makes it very clear that the assignee also can file an application to set aside the abatement of a suit on the death of the plaintiff. O.22 R.9 reads thus:-

(3.) In these circumstances, I see no jurisdictional error in the order impugned in this Civil Revision Petition. Further this Court should not take a technical view and unnecessarily interfere in every case where an order has been made irregularly or even improperly, unless grave injustice or grave hardship would result from failure to do so. This I say, since S..115(1) Proviso (b) of C.P.C. makes it clear that this Court, in exercising its power under S.115, should reverse or vary any order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made.