ROSHANLAL TIWARI Vs. PANNALAL TIWRI

JUDGEMENT

(1.) This Civil Revision has been preferred by the legal representatives of the original appellant/plaintiff-Roshanlal Tiwari (dead) challenging the order dtd. 13/2/2021 passed by 3rd Additional District Judge, Rewa in Civil Appeal No. 7/21 which has been dismissed as having abated for want of filing of application under Order 22 Rule 9 CPC.

(2.) Short facts of case are that the plaintiff had instituted a suit for declaration of title and restoration of possession in respect of the agriculture lands described in the plaint and after holding trial, learned trial Court dismissed the suit vide judgment and decree dtd. 29/1/2013 passed in Civil Suit No. 87-A/2010 and the judgment and decree passed by learned trial Court was challenged by original plaintiff-Roshanlal Tiwari but during pendency of the civil appeal, he died on 9/12/2015. Although applications under order 22 rule 3 CPC and Sec. 5 of the Limitation Act, 1963 were filed but for want of application under order 22 rule 9 CPC, the applications under order 22 rule 3 CPC as well as under Sec. 5 of the Limitation Act were dismissed and consequently the civil appeal also was dismissed as abated.

(3.) Learned counsel for the applicants (LRs of original plaintiff/appellant/deceased Roshanlal Tiwari) submits that due to no knowledge of pendency of civil appeal, requisite application under order 22 Rule 3 CPC could not be filed timely and after getting knowledge of pendency of the civil appeal upon receipt of letter issued by the counsel, legal representatives contacted to the counsel, who filed applications under order 22 Rule 3 CPC as well as under Sec. 5 of the Limitation Act supported by affidavit(s) but for the reasons not known to the applicants, application under Order 22 Rule 9 CPC was not filed by the counsel. Resultantly, learned first appellate Court taking harsh view and even without giving any opportunity of filing application under Order 22 Rule 9 CPC, dismissed the civil appeal as abated. Learned counsel for the applicants submits that in the available facts and circumstances of the case, either the applications filed under Order 22 Rule 3 CPC and Sec. 5 of Limitation Act ought to have been allowed or the applicants ought to have been given opportunity to file the application under Order 22 Rule 9 CPC before dismissing the civil appeal as abated. With the aforesaid submissions, he prays for allowing the Civil Revision.