RITU JUTSHI Vs. RUKMINI KAUL

JUDGEMENT

(1.) Heard Mr. Rajeiu Kumar Tripathi, learned counsel for appellants and Mr. Shaquiel Ahmad, learned counsel for respondent.

(2.) First Appeal from Order under Sec. 104 read with Order 43, Rule 1 (k) read with Sec. 141 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) has been filed against order dtd. 31/7/2012 passed in Regular Civil Appeal No.53 of 1995. By means of the impugned order, the application for substitution filed under Order XXII Rule 3 has been rejected primarily on the ground that it was unaccompanied by any application for condonation of delay and application for setting aside abatement.

(3.) Learned counsel appearing on behalf of the respondent has raised a preliminary objection regarding maintainability of the appeal in view of the fact that an appeal under Order 43, Rule 1 (k) can be filed only against an order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit. It has been submitted that since in the present case, the order under challenge has merely rejected the application filed under Order XXII Rule 3 of the Code, therefore, there is no refusal to set aside abatement in terms of Rule 9 of Order XXII and the present appeal, therefore, is not maintainable. Learned counsel for respondent has relied upon the decision of Hon'ble the Supreme Court in Mangluram Dewangan v. Surendra Singh and others reported in (2011) 12 SCC 773.