1. Heard on admission.

2. This is a Miscellaneous Appeal preferred under Order 43 Rule 1(k) of the Code of Civil Procedure, 1908 (for short 'the CPC') by the legal representatives/Applicants of the sole deceased Plaintiff namely Bisesar Sahu against the order dated 22.12.2016 passed by the 1st Additional District Judge, Durg in Civil Suit No.3-A/2002, by which the applications filed under Order 22 Rule 3, order 22 Rule 9 CPC and Section 5 of the Indian Limitation Act have been rejected.

3. The undisputed facts of the case are that the original Plaintiff Besesar instituted a suit for declaration of title, partition and for separate possession by claiming 1/7th share with regard to the Plaint-Schedule A, B & C properties as described detailed in the said Schedules. During the pendency of the suit, the sole Plaintiff Besesar expired on 28.2.2012. Upon his death, an application as required under Order 22 Rule 3 CPC has been made by his legal representatives/Applicants on 21.9.2012. After filing of the said application, other applications as required under Order 22 Rule 9 of the CPC and Section 5 of the Indian Limitation Act have also been filed by the Applicants on 12.11.2014 by submitting inter alia that they were not aware with regard to the legal proposition in filing the same on account of the death of the sole Plaintiff- Besesar. They submit in their said applications that their senior counsel Shri JK Shrivastava was not well and was hospitalized and subsequently expired on 30.8.2014. Therefore, a request was made that by taking liberal view while entertaining this application, the same may kindly be allowed while permitting the Applicants to be substituted in place of the deceased sole Plaintiff in order to pursue the suit. The said applications were supported by the affidavits.

4. Likewise, during the pendency of suit, Defendant No.2 has also expired on 11.10.2014. Therefore, the Applicants have moved an application in this regard also on 20.11.2015 as per the provisions prescribed under Order 22 Rule 4 of CPC duly supported by an affidavit.

5. The aforesaid applications were opposed by the Defendants and it was submitted that sufficient reasons have not been assigned in the aforesaid applications, therefore, the same deserve to be rejected.

6. After considering the aforesaid applications, the trial Court, by its order impugned dated 22.12.2016, has rejected the said applications by holding that each day's delay has not been assigned while filing the aforesaid applications for setting aside the abatement on account of the death of the sole Plaintiff. After rejecting these applications, the trial Court has further decided the application which was filed on account of death of Defendant No.2 on the same day.

7. Being aggrieved, the Applicants/legal representatives of the sole Plaintiff has preferred this Miscellaneous Appeal. Ms. Priyanka Mehta, learned Counsel for the Appellants submits that while entertaining the application filed under Order 22 Rule-9 of CPC and Section 5 of the Indian Limitation Act, the trial Court ought to have adopted a liberal view in order to provide substantial justice to the parties. However, while adopting hyper technical view, the trial Court has erred in rejecting these applications. She submits further that after refusing to set aside the abatement, the trial Court ought not to have decided the application which was filed on account of death of Defendant No.2. In support, she placed her reliance upon a decision rendered in the matter of Banwari Lal (dead) by Legal representatives and another versus Balbir Singh reported in (2016) 1 Supreme Court Cases 607

8. On the other hand, Shri HB Agrawal, learned Senior Advocate has supported the order impugned and stated that since sufficient reasons have not been assigned in the application for bringing the legal representatives of the deceased sole Plaintiff on record as well as for condonation of delay in filing application for setting aside the abatem