HAJI MOHD. YUSUF ANSARI AND ORS. Vs. SALIM

JUDGEMENT

(1.) Heard finally with consent. This writ petition under Article 227 of the Constitution of India is at the instance of defendants in the suit challenging the order of trial Court dated 17 -4 -2015 allowing the plaintiffs application under Order 22, Rules 4 and 9 of Civil Procedure Code as also the application under Sec. 5 of Limitation Act and bringing the legal representatives of deceased defendant on record.

(2.) Having heard the learned counsel for parties and on perusal of the record, it is noticed that the original defendant had died on 2 -4 -2014 and respondent had filed application under Order 22, Rules 3 and 4 of Civil Procedure Code on 21 -4 -2014 (Annex. P -4) but in the said application no date of death and details of LRs were disclosed. The respondent, thereafter had filed the application dated 25 -8 -2014 under Order 22, Rules 2, 3, 4 and 9 of Civil Procedure Code disclosing the date of death as also the details of legal representatives of deceased defendant. The said application was filed with a delay of 36 days, therefore, an application for condonation of delay was also filed under Sec. 5 of Limitation Act. The applications were duly supported by affidavit and the same have been allowed by the trial Court by the impugned order. While allowing the said applications, the trial Court has noted that delay was caused in filing the application since time was taken in collecting the details of LRs and the said fact is duly supported by the affidavit of respondent. Trial Court has also found that for disposal of the case, it is necessary to bring the LRs on record. Considering the circumstances, the trial Court has rightly allowed the application under Order 22, Rules 4 and 9 of Civil Procedure Code. While condoning the delay in filing the application, though the trial Court has not specifically mentioned that abatement is set aside but it is implicit in the order that abatement is set aside when the trial Court has allowed the application under Order 22, Rule 9, Civil Procedure Code.

(3.) The view which has been taken by the trial Court is duly supported by the judgment of the Supreme Court in the matter of Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others, reported in : AIR 1987 SC 1353, judgments of this Court in the matter of Sital Prasad Saxena (dead) by LRs. vs. Union of India and others, reported in : AIR 1985 SC 1 and Laxmi Chand (Deceased) through LRS and others vs. Bhawati Bai and another, reported in, ILR (2008) M.P. 1305.