A prayer for setting aside abatement is implicit in an application for substitution after condoning the delay, and the court should adopt a "justice oriented approach" in such cases.

Soumen Sen, J.

1. The order allowing substitution is a subject-matter of challenge in this revisional application.

2. The original plaintiff instituted a suit for eviction. The plaintiff expired after the conclusion of his evidence on October 21, 2010. Within the period of limitation on 18th January, 2011, the application was filed for substitution under Order 22 Rule 3 by the heirs of the sole plaintiff. The said application was dismissed on 17th May, 2011 on the ground that the said application was not filed in proper form. While dismissing the said application, opportunity was given to the plaintiff to file a fresh petition for substitution and June 9, 2011 was fixed for fresh steps to be taken by the plaintiff. Consequent thereupon, another application was filed on June 9, 2011 for substitution along with an application for condonation of delay. The said application was allowed.

3. Mr. A.C. Kar, the learned Counsel appearing on behalf of the petitioner submits that on the date of filing of the said application, the suit has abated and without a formal prayer being made for setting aside of abatement, the Court has no jurisdiction to allow the application filed by the legal heirs for substitution. In this regard, Mr. Kar has relied upon the decisions reported in AIR 1964 SC 215 (Union of India Vs. Ram Charan & Ors.) and AIR 1983 SC 676 (Madan Naik Vs. Mst. Hansubala Devi).

4. In Union of India (supra), the issue was what would be the period of limitation for making an application for setting aside the abatement. It was held that the limitation for application to set aside abatement should start from the date of death and not from the date of appellant’s knowledge of death. The said application was filed by the appellant to bring legal representatives of the respondent on record. It was further held that there is a specific provision under Order 22 Rule 9 of the Code of Civil Procedure and recourse cannot be had to Section 151 of the Code of Civil Procedure. It was held that the Court cannot invoke its inherent powers under Section 151 of the Code of Civil Procedure for the purpose of impleading legal representatives of the deceased respondent if the suit had abated on account of the appellant for not taking appropriate steps within time.

5. In Madan Naik (supra) it was held that no specific order is necessary for setting aside the abatement and the suit would automatically abate, if the substitution does not take place within the period of 90 days as required under Order 22 Rule 4 of the Code of Civil Procedure.

6. It is a duty of the opposite parties to have themselves substituted within the period of 90 days from the date of death of the sole plaintiff and in the event no such application is filed, the suit shall abate. No specific order for abatement of a proceeding under Order 1 or the other provisions of Order 22 is envisaged and the abatement takes place on its own force by passage of time. There is no doubt that if the substitution application is not moved within the time, the abatement takes place automatically.

7. An application to bring on record legal representative of the parties to a lis who died during the pendency of the suit (appeal) is 90 days and the time starts running from the date of death of the plaintiff or the defendant as the case may be. The limitation for an application to set aside an order of abatement of suit (appeal) is 60 days from the date of abatement. Abatement of a suit on account of failure to bring legal representatives of the deceased on record within the prescribed period of limitation is automatic. A specific order dismissing the suit as abated is not necessary. An application for setting aside abatement or dismissal of suit can be made under sub-rule 2 of Rule 9. Rule 9(2) requires application to be “made” and not “filed”. The word “made” gives an impression that such applications may be in writing or oral. Sub-rule 3 of Rule 9 expressly states that the provision of Section