KIRTI JAIN Vs. CHAMANLAL JAIN

JUDGEMENT

(1.) The present petition has been filed by the petitioner being aggrieved by the order dtd. 7/8/2025 passed by II Civil Judge, Junior Division, Uchehara, District, Satna in Civil Suit No.17/2019, whereby the applications submitted by the petitioner/ plaintiff for bringing the LRs of defendant no.1 and defendant no.16, I.A.No.2/2025 and I.A.No.3/2025, have been rejected.

(2.) As the application remained unopposed before the court below, this court is of the opinion that presence of respondents is not necessary.

(3.) It has been submitted by learned counsel for the petitioner that the application for substitution of LRs of defendant No.1 was well within time; but, the same has been rejected on the ground that death certificate of the deceased defendant no.1 and his family tree have not been filed. It has been submitted that it is apparent from the order-sheets that there is no dispute in regard to the legal heirs proposed by the petitioner/plaintiff in the application by any of the defendants. In absence of any dispute in regard to death as well as the legal heirs, the application ought to have been allowed. The learned Court below has committed error of law in not allowing the application. It is further submitted that Order 22 Rule 4 C.P.C. prescribes for substitution of LRs of the defendant, which as per the dictum of the Hon. Apex Court is the power vested with the court and the same should be exercised judicially. Further, it is submitted that second application for substitution of LRs of defendant No.16 has been filed on the next hearing when the information was given in respect of death of defendant No.16 by the counsel before the court. Therefore, such application was based on bona fide and considering the date of knowledge/information ought to have been allowed. Counsel for the petitioner has relied on the judgment of the Hon. Apex Court in the case of Om Prakash Gupta allias Lalloowa (now deceased) and others Vs. Satish Chandra (now deceased), reported in AIR 2025 SC 1201, to submit that if the application under Order 22 Rule 4 CPC has been filed, prayer of setting aside abatement is inherent, and if the application under Order 22 Rule 9 CPC and Sec. 5 of Limitation Act are not filed, then even assuming that it does not have an explicit prayer for setting aside abatement, such prayer could be read as inherent in the prayer for substitution in the interest of justice. It has also been held that the prayer for setting aside abatement and the dismissal consequent upon an abatement have to be considered liberally. The relevant paragraph of the said judgment is reproduced hereinbelow :-