Judgment

DESAI, J.:- One Shri Sital, Prasad Saxena filed Civil Suit No. 46A of 1969 against 1) Union of India 2) Comptroller and Auditor General of India & 3) Accountant General Madhya Pradesh for a declaration about the status of his post and arrears of salary in respect of the post in which he was entitled to continue. The suit came up for hearing before the 5th Civil Judge Class II, Gwalior who by his judgment and decree dated July 7, 1969 dismissed the suit. Plaintiff Sital Prasad Saxena preferred civil appeal No. 36A of 1970 against that judgment and decree of the trial court in the District Court at Gwalior. The appeal came up for hearing before the learned First Additional District Judge who agreed with the findings recorded by the trial Court and accordingly by his judgment and order dated August 4, 1970 dismissed the appeal. Plaintiff Sital Prasad Saxena preferred Second Appeal No. 10 of 1971 in the High Court of Madhya Pradesh - Jabalpur Bench.

2. During the pendency of the appeal in the High Court. plaintiff - appellant Sital Prasad Saxena expired on February 25, 1976. One Mahendra Kumar Saxena claiming to be one of the sons of late Sital Prasad Saxena moved an application being I.A. No. 5582 of 1978 under 0. XXII, R. 3 of the Code of Civil Procedure for substitution of heirs and legal representatives of the deceased appellant with a view to prosecuting the appeal. He simultaneously moved another application being I.A. No. 5744 of 1978 under O. XXII R. 9, C.P.C. requesting the Court that if the appeal has abated for failure to seek substitution within the prescribed period of limitation, the abatement of the appeal may be set aside. He also moved another application being I.A. No. 5745 of 1978 for seeking condonation of delay under S. 5 of the Limitation Act.

3. A learned single Judge of the High Court by his order dated January 29, 1981 directed that all the three miscellaneous applications be transmitted to the trial Court for enquiry and report regarding the date of death of Sital Prasad Saxena and knowledge about the pendency of the appeal of the heirs and legal representatives in order to ascertain whether the applicant had made out sufficient cause for condoning the delay which, if permitted, would enable the Court to set aside the abatement. The trial Court after recording the evidence of the parties submitted the report which in terms included a finding that Mahendra Kumar Saxena had knowledge about the pendency of the second appeal before October 7, 1978, the date on which he moved the aforementioned applications. It appears that on the receipt of the report of the trial Court Mahendra Kumar Saxena and other legal representatives of the deceased appellant moved an application being I.A. No. 2722 of 1981 praying for an opportunity to examine another son of the deceased appellant, viz., Shailendra Kumar Saxena, They also filed objections controverting the finding recorded by the trial Court.

4. It appears that the Union of India resisted the applications contending that the petitioner has failed to make out sufficient cause for the delay in seeking substitution and therefore no case is made out for condoning the delay and setting aside abatement. The position adopted by Union of India is a bit surprising for us.

5. The High Court after minutely examining the rival contentions held that the conclusion reached by the trial Court is such that the learned Judge would not like to take a different view of the matter. The approach of the High Court suggests that it was exercising revisional jurisdiction while examining the report of the trial Court. This approach does not commend to us. Accordingly the learned Judge rejected the various applications thereby declining to condone the delay which alone would permit him to set aside the abatement with the result that appeal was disposed of as having abated. Hence this appeal by special leave.

6. We heard Mr. S. S. Khanduja, learned counsel for the appellants and Mr. G. D. Gup