The duty of the appellant to bring the legal representative of the deceased on record within the specified time limits and the importance of establishing the exact date of death before dismissing the appeal as abated.

R.K. Deshpande, J.

Rule made returnable forthwith. Heard the matter finally by consent of the learned Counsel appearing for the parties.

2. This petition challenges the order dated 21.4.2010, passed by the learned District Judge-3, Nagpur, rejecting the Misc. Civil Application No.329 of 2008 for condonation of delay caused in filing the application for setting aside the abatement of the appeal. The petitioner, Nagpur Improvement Trust (NIT) is the defendant in RCS No.503 of 1995 decreed by the Trial Court on 7.3.2001 in favour of the plaintiff. The petitioner challenged the said decree by filing RCA No.285 of 2001, which has been dismissed as abated on 18.3.2008.

3. Undisputed factual position is that the sole plaintiff Sardar Mulkha Singh died on 1.11.2003 during the pendency of the Regular Appeal No.285 of 2001 in which he was the sole respondent. On 17.2.2004, the Counsel for the plaintiff filed a Pursis in terms of Order 22 Rule 10A of the Civil Procedure Code. The contents of the said Pursis are reproduced below"

"Pursis

That in the instant matter it is learnt to the Counsel that the respondent Shri Mulkha Singh is expired. However, the date of death is not confirmed as soon as it will be available along with death certificate, the same will be filed on record.

Hence this Pursis.

CF Respondent"

4. On 26.4.2004, the Counsel for the appellant/NIT filed a Pursis Exh.9. The contents of which are reproduced below-

"Pursis

In view of the pursis filed by the counsel for the respondent dated 17.2.2004 regarding death of the respondent, Shri Mulka Singh, the appellant tried to collect the names and addresses of the legal heirs of the respondent. The concerning Divisional Officer sent its staff to the suit site. However, they refused to co-operate and did not disclose the details of the legal heirs of the respondent.

Hence, this Pursis.

Nagpur

Dated : 26.4.2004

Appellant/nit

It seems that for want of the names of the legal heirs of the plaintiff and the date of death of the plaintiff Sardar Mulkha Singh, the matter remained pending and ultimately on 18.3.2008, the Appellate Court passed an order of abatement of appeal. The said order is reproduced below-

"Appellant failed to bring the legal heirs of deceased respondent on record though the respondent died long back. Appeal stands abated."

5. On 7.4.2008, four applications were filed by the petitioner (1) application for condonation of delay in setting aside the abatement, (2) application for setting aside the abatement, (3) application for condonation of delay in bringing the legal heirs of the deceased plaintiff on record and (4) application for bringing the legal heirs of the deceased plaintiff on record. In the application for condonation of delay it was stated that while verifying paper book, it transpired that one Kulwant Singh s/o Mulkha Singh has deposed before the Trial Court on behalf of Shri Mulkha Singh and hence, he is the legal heir of plaintiff. On 21.4.2010, the Appellate Court has rejected the MCA No.329 of 2008 for condonation of delay caused in filing the application for setting aside the abatement of appeal. The finding is recorded that there was delay of 1439 days caused in filing an application and hence, the same has not been explained making out a sufficient cause. This order is the subject matter of challenge in this petition.

6. The question is whether the Appellate Court was right in dismissing the Regular Civil Suit No.285 of 2001 as abated on 18.3.2008 and consequentially whether there was delay in filing an application for setting aside the abatement. Order 22 Rule 3 of the Civil Procedure Code, deals with the procedure in case of death of one of several plaintiffs or of sole plaintiff. The same is relevant and hence, reproduced below -

"Order 22 : death, marriage and insolvency Of parties

Rule 3. Procedure in case of death of one of several plaintiffs or of