CHANDA KACHER Vs. KAMLESH KACHER

JUDGEMENT

(1.) The present petition has been filed challenging the order dtd. 8/1/2021 passed by the appellate Court, whereby the appellate Court has set aside the order dtd. 26/10/2015 passed by the trial Court, by which the trial Court had rejected application under Order 22 Rule 4 CPC for substitution of legal representatives of sole defendant and consequently dismissed the suit as abated and consigned the file to the record room. In appeal, the appellate Court vide impugned order dtd. 8/1/2021, has allowed the application under Order 22 Rule 4 read with Rule 9 CPC and permitted substitution of legal representatives of sole defendant.

(2.) The necessary facts for the purpose of adjudication of the present petition are that a suit had been filed by the original respondent who was the original plaintiff against the original defendant. The legal representatives of original defendant are in this petition before this Court. The original plaintiff and original defendant were step-mother and step-son respectively and the suit was filed in the year 1999, which was for eviction of the original defendant who was the step-son of the original plaintiff. During the pendency of this petition, the original plaintiff has also died and is now represented by her son.

(3.) The original defendant expired on 22/6/2014 and an application for substitution of legal representatives was filed on 29/6/2015 which was almost one year after death of the original defendant and no separate application under Sec. 5 of the Limitation Act was filed along with the said application. Therefore, the trial Court had rejected the said application on the ground that it is barred by limitation because 150 days after date of death of the original defendant, application under Sec. 5 of the Limitation Act had to be filed which has not been filed. Even otherwise, the application was not found to have disclosed sufficient reason for the delay caused in filing of application for substitution and on these grounds, the substitution was rejected by the trial Court and the suit was dismissed as abated. Against that order, the original plaintiff approached the appellate Court and the appellate Court has set aside the order and directed substitution of legal representatives of original defendant.