IMPORTANT POINTS
When along with application for restoration of second appeal applications were filed for condonation of delay and setting aside abatement and to bring on record the legal representatives of appellant no. 2 it was not correct on the part of the High Court to dismiss second appeal as abated without passing specific order on those applications.
Order XXII being a rule of procedure, its strict adherence may not be insisted where substantial rights of the parties are involved.

JUDGMENT :

R. BANUMATHI, J.

Leave granted.

2. This appeal arises out of the order dated 15.03.2013 passed by the High Court of Delhi dismissing the second appeal being RSA No.100 of 2008 as abated and also the interlocutory applications being CM Nos.6342/2008, 11811-11813/2009 and 1998/2012 to bring on record the legal representatives of the appellants herein.

3. Respondent-Balbir Singh filed a suit bearing No.369/1986 against one Banwari Lal and Swaraj for declaration and permanent injunction. Case of respondent-plaintiff is that he is the owner of parcel of land measuring 600 sq. yards, bearing plot Nos. 5, 6 and 7 out of Rect. No.42, Kila No.5/1 situated in the area of village Karawal Nagar, Delhi in the abadi of Prem Nagar Extn. Illaqua Shahara, Delhi. The aforesaid parcel of land is also claimed by late Banwari Lal contending that the land was purchased by him on 25.09.1985 from one Premlata and her husband Chander Prakash. The trial court initially dismissed the suit vide judgment dated 13.02.1997. In the appeal, the first appellate court set aside the judgment and decree passed by the trial court and the matter was remanded back to the trial court to decide the matter afresh. Trial court considered the entire matter afresh and again dismissed the suit bearing No.276/2004 of the respondent/Balbir Singh vide judgment dated 23.09.2005. Respondent/Balbir Singh again feeling aggrieved, preferred a fresh appeal bearing RCA No.226/2005 against the said judgment and the decree. First appellate court by judgment dated 04.02.2008 set aside the judgment and decree passed by the trial court and allowed the appeal of Balbir Singh. During the pendency of the first appeal, defendant-Banwari Lal died on 30.01.2006 that is almost two years prior to the date of judgment of the first appellate court. Even though Banwari Lal has expired on 30.01.2006, no steps were taken to bring on record the legal representatives of late Banwari Lal.

4. Being aggrieved by the judgment of the first appellate court, Banwari Lal represented by his legal representatives and the second appellant-Swaraj filed second appeal before the High Court of Delhi. During the pendency of the second appeal, appellant No.2-Swaraj also died on 02.12.2008.

5. Second Appeal itself was dismissed for non prosecution on 02.08.2010. Two applications were filed bearing CM Nos.17569-17570/2010 for restoration and condonation of delay. On the basis of the said applications, the High Court had passed an order on 02.02.2012 restoring the second appeal to its original number. After restoration, the second appeal was dismissed by the High Court on the following grounds:-

(i). The appellants have not taken steps to bring on record the legal representatives of Banwari Lal either in the first appeal or at the time when the second appeal was filed. Second appeal was purportedly filed on behalf of the legal heirs of late Banwari Lal without there being any affidavit or Vakalatnama signed by any of them or no application under Order XXII Rule 3 CPC has been filed along with the appeal. The proceedings against Banwari Lal had abated even during the pendency of the first appeal itself and it was improper on the part of the appellants to have mentioned the names of legal heirs of Banwari Lal in the memo of second appeal.

(ii). Second appellant-Swaraj also died on 02.12.2008 and an order was passed on 06.08.2009 that the second appeal abated qua the second appellant as no steps were taken to bring on record his legal representatives.

6. Second appellant-Swaraj died on 02.12.2008. CM Nos.7034 of 2009 (under Order XXII Rule 9 CPC) and 7035 of 2009 (under Order XXII Rule 3 CPC) in RSA No.100/2008 were filed to set aside the abatement against appellant No.2 and also to bring on record the legal representatives of the second appellant. Since application for condonation of delay in filing the applications was not filed, those applications were withdrawn with liberty to file a fresh application. Since fres