Sunil Dutta Mishra, J. –

In re: I.A. No. 3 of 2022 :

This interlocutory application has been filed for deleting the names of deceased-appellant Nos. 3 and 4 and respondent No. 1, who died on 19.10.2020, 14.02.2022 and 12.04.2019 respectively and for substituting the name of their heirs and legal representatives in their place in the cause title.

2. It is submitted that heirs of deceased appellant No. 3 may be transposed to the category of respondents at the risk of remaining appellants as the Vakalatnama of the heirs is not available to be filed as they are not presently available at their residence and have gone outside to different City. It is also stated that class II heirs (appellant Nos. 1, 2 and 5) of deceased appellant No. 3 are already on record representing his interest and estate and as such there is no question of abatement or limitation arises when the case of all these parties are common and all are heirs of respondent No. 3 and there is no clash/conflict of interest which is common and not adverse to each other.

3. It is next submitted that the heirs of deceased appellant No. 4 are already on record as appellant No. 1, 2 and 5 as such name of appellant No. 4 is required to be deleted.

4. Further it is submitted that two heirs (sons) of respondent No. 1 are already on record as respondent No. 2 and 3 and rest heir, (detail given in para 6 of the application) who is daughter of respondent No. 1 be substituted in place of respondent No. 1.

5. Learned counsel for the appellants has submitted that there is no question of abatement or limitation arises in the fact and circumstances and there is no delay or laches in filing this application. He has referred and relied on the judgments of Full Bench of this Court in Jagarnath Singh vs. Smt. Singhasan Kuer (1984 PLJR 217), Yogendra Bhagat vs. Prit Lal Yadav (2009 (3) PLJR 697), Sudama Devi vs. Yogendra Chaudhary & Ors. (1987 PLJR 793) and the judgment of Hon’ble Supreme Court in Mahabir Prasad vs. Jage Ram & Ors. (AIR 1971 SC 742).

6. Learned counsel for the respondents has opposed the application and submitted that appellants have made different prayers under different provisions of law in single application which is against the practice and provisions of law. It is further submitted that there is delay and laches in filing the substitution application without any plausible and satisfactory reason and the appeal has abated in whole.

7. The full Bench of Patna High Court in Jagarnath Singh vs. Smt. Singhasan Kuer (1984 PLJR 217) after discussing several Supreme Court decisions, held that when one or more heirs of the deceased defendant or respondent are on record, then the estate is fully represented in the suit or the appeal, as the case may be, and the suit or the appeal will not abate for not bringing on record the other left out side.

8. The full Bench of Patna High Court in judgment of Yogendra Bhagat vs. Pritlal Yadava, 2009 (3) PLJR 697 held that the definition of word “Legal Representative” as provided under Section 2(11) of the Code is inclusive in character and its scope is wide. It is not confined to a preferred class of heirs only but also includes even intermeddlers. Counsel has referred to a full Bench decision of Patna High Court in Sudama Devi and others vs. Yogendra Chaudhary and others reported in 1987 PLJR 793, wherein it has been held that even an intermeddler to the estate of the deceased can represent heirs as his legal representatives as per the wide spectrum definition of legal representative, provided in Section 2 (11) of the Code.

9. In Mahabir Prasad vs. Jage Ram and others reported in AIR 1971 SC 742, it has been held that “where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on record as an heir and legal representative. Even if there are other heirs and legal representatives