Valmiki J. Mehta, J.:--

1. This revision petition under Section 115 of Code of Civil Procedure, 1908 (CPC) impugns the order of the Trial Court dated 27.8.2013, which has allowed the application under Order 22 Rule 4 CPC read with Section 5 of the Limitation Act, 1963 moved by the respondent/plaintiff for bringing on record the legal heirs of the deceased defendant Smt. Asgari Begum. The application was moved to bring on record the legal heirs in a suit for possession and mesne profits, which was filed by the respondent/plaintiff against Smt. Asgari Begum, and who is now represented by her legal heirs.

2. There is a chequered history of this case and which needs to be stated in order to appreciate the validity or otherwise of the impugned order dated 27.8.2013. The defendant Asgari Begum expired on 19.12.2003 and thereafter an application under Order 22 Rule 4 CPC was moved giving the name of only son of the deceased Smt. Asgari Begum, inasmuch as details of other legal heirs were not known to the respondent/plaintiff. The respondent/plaintiff thereafter moved an application under Order 6 Rule 17 CPC disclosing the names of all the legal heirs of the deceased defendant. Really this application was only an additional affidavit to the pending application under Order 22(4) as the application stated the names of other legal heirs of Asgari Begum. This application for amendment was however dismissed on 24.9.2005 and whereafter the LR Nos. 1 & 2 who had appeared on record moved an application for abetment of the suit on the ground that the other legal heirs had not been brought on record. This application was allowed by the trial court vide order dated 06.3.2009 holding the suit to have been abated.

3. Actually the order dated 06.3.2009 no doubt stated that the suit has been abated, really, it was an order for dismissing the suit in default as abated because none had appeared on behalf of the respondent/plaintiff on 06.3.2009. This is noted in the order of a learned Single Judge of this Court dated 18.12.2009 in C.M(M)No. 1495/2009 filed by the respondent/plaintiff against the petitioner herein challenging the order dated 6.3.2009, and by which order dated 18.12.2009 this Court gave liberty to the respondent/plaintiff to move an application for restoration of the suit. The order of this Court dated 18.12.2009 in C.M(M) No. 1492/2009 reads as under:

“The petitioner being the plaintiff is aggrieved by the order dated 6th March, 2009 of the Trial Court dismissing the suit filed by the petitioner/plaintiff as abated. On the demise of the respondent/defendant, the petitioner/plaintiff applied for substitution of two legal representatives of the respondent/defendant. However, the said legal representatives disclosed that the respondent/defendant has left other legal heirs also and liberty was given to the petitioner/plaintiff to apply for substitution of the other legal representatives also. The petitioner did not take any steps in this regard for a long period of four years. When the suit was listed on 6th March, 2009, none appeared for the petitioner/plaintiff before the Trial Court. Notwithstanding that the petitioner/plaintiff was in default of appearance, the Trial Court dismissed the suit as abated.

The counsel for the petitioner/plaintiff has contended that since some of the legal representatives had been brought on record, the suit could not have been dismissed as abated. Though there may be merit in the said plea of the petitioner/plaintiff but the fact remains that none had appeared for the petitioner/plaintiff before the Trial Court on 6th March, 2009. No application also for restoration of the suit is informed to have been filed. The Trial Court has/had no occasion to deal with the pleas of the petitioner/plaintiff. The order dated 6th March, 2009 of the trial court dismissing the suit, in default of appearance of petitioner/plaintiff, even if as abated, would remain a dismissal under Order 17 Rule 2 of CPC only, as held in Mohanda

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