ORDER

1. Prayer for bringing on record the legal representative of the deceased petitioner is allowed.

2. Permission to file SLP is granted.

3. Leave granted.

4. A suit relating to declaration of title of the suit property was pending in the trial court. Though a copy of the plaint is not available on record, however, it is stated at the Bar that the suit seeks declaration of title with consequential relief of injunction. It appears that during the pendency of the suit the sole plaintiff died. The legal representative moved applications under Order 22 Rules 4 and 9 of the Code of Civil Procedure seeking impleadment, setting aside of abatement and condonation of delay in moving the applications. The trial court on inquiry held a sufficient cause within the meaning of Section 5 of the Limitation Act and Rule 9 of Order 22 CPC to be made out; directed the delay in moving the applications to be condoned and abatement to be set aside; and allowed liberty to the proposed legal representative to be brought on record in place of the deceased plaintiff.

Feeling aggrieved by the order of the trial court, the defendants preferred a revision in the High Court. The High Court has, in exercise of its revisional jurisdiction under Section 115 CPC, interfered with the order of the trial court forming an opinion that the delay in moving the applications was not satisfactorily explained, and, in view of that finding set aside the order of the trial court and directed the condonation application moved by the proposed legal representative of the plaintiff in the trial court to be rejected. The order of the High Court has resulted the suit being dismissed as having abated.

5. Aggrieved by the order of the High Court, the proposed legal I representative of the plaintiff has preferred this appeal by special leave.

6. Having heard the learned counsel for the parties we are satisfied that the impugned judgment of the High Court cannot be sustained. In Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjeel this Court has held: (AIR p. 1336) "It is not open to the High Court in the exercise of its revisional jurisdiction under Section 115, to question the findings of fact recorded by a subordinate court. Section 115 applies to cases involving questions of jurisdiction i.e. questions regarding the irregular exercise or non-exercise of jurisdiction or the illegal assumption of jurisdiction by a court and is not directed against conclusion of law or fact in which questions of jurisdiction are not involved." 7. The facts of this case squarely attract the applicability of the law laid down by this Court in Manindra Land and Building Corpn. Ltd. A reading of the judgment of the High Court shows that the High Court too has not arrived at a finding that there was any such jurisdictional error committed by the trial court as to call for interference by the High Court in exercise of its revisional jurisdiction. The impugned judgment of the High Court cannot, therefore, be sustained.

8. It was submitted by the learned counsel for the respondents that the appellant herein is seeking substitution on the basis of a will which is not probated and unless and until the Will has been probated the appellant cannot be permitted to establish his claim under the Will. In our opinion, this objection is premature. In spite of the substitution having been permitted, the defendant-respondents shall have the liberty of raising such objection in their written statement which,. if taken, shall be heard and decided by the trial court on its own merits. We too do not express any opinion thereon.

9. The appeal is allowed. The impugned judgment of the High Court dated 13-3-2003 is set aside and instead that passed by the trial court dated 23-1-2002 is restored.

10. No order as to costs.