The main legal point established is that a technical error in captioning the application under the wrong provision of the law should not result in non-suiting the plaintiff, and that an application showing sufficient cause can set aside the abatement and bring legal representatives on record.

Rajesh Balia, J.-Having heard learned Counsel for the petitioner I do not find any reason to interfere in the order passed by the Court below. Neither the Court below had exceeded the jurisdiction vested in it by law in allowing the application for bringing on record the legal representatives after setting aside the abatement which has occasioned on account of non-making of application within 90 days of death of the defendant. The application was filed after four days. The order under revision has also not occasioned in failure of justice.

2. The application under Order 22 Rule 4 CPC for bringing on record the legal representatives has been moved alongwith the application under Section 5 of Limitation Act instead of captioning it as an application for setting aside the abatement, though showing sufficient cause for not making an application under Order 22 Rule 4 within time allowed.

3. The trial Court for that reason alone rejected the application. The appellate Court had allowed the appeal and application and restored the suit to its original number by setting aside the abatement and bringing on legal representatives of deceased defendant on record.

4. It need be noticed that on the one hand when a defendant dies and right to sue survives, if his legal representatives are not brought on record, the suit abates against such deceased-defendant. At the same time, statute also provided that if an application is made within 60 days of abatement of proceedings showing sufficient cause which prevented the applicant from making the application under Order 22 Rule 4 within time allowed. The abatement can be set aside and legal representatives can be brought on record. If no application for setting aside abatement is made within 60 days of abatement, the suitor can still make application under Section 5 of Limitation Act showing that he was prevented by sufficient cause from making an application for setting aside abatement within time allowed alongwith an application for setting aside abatement.

5. In the present case, the application under Order 22 Rule 4 was made within 4 days of expiry of period of making such application. Stage of making any application under Section 5 of Limitation Act has not reached. In such circumstances, when the applicant has made an application showing sufficient cause which prevented him from making an application under Order 22 Rule 4 with a prayer to allow such application, the application cannot be treated as one for setting aside abatement. As no application under Section 5 of Limitation Act at that stage was envisaged. It was of best a case of wrong mention of provisions of law.

6. Merely because the application has been captioned under wrong provision of Act, the plaintiff cannot be non-suited on this technical ground. The application has been allowed by treating the application under Section 5 of Limitation as application for setting aside the abatement.

7. In these circumstances, no case for interference in revisional jurisdiction is made out. The petition is dismissed.