Honble MADAN, J.–Heard learned counsel for the parties on the respondents application under Order 22 Rule 4 CPC. The sole appellant plaintiff Keshav Dev died on 22.10.98. His legal heirs have not been brought on record till date. The respondent Mst. Naraini expired on 11.11.93. This fact was within the full knowledge of the appellant but no application was filed to bring the legal heirs of Mst. Naraini or even the LRs of the appellant on record.

(2). From the perusal of the record. I find that appeal was dismissed on 1.2.1994 for non prosecution. The learned Single Judge passed the order dt. 1.12.94 to the following effect:-

``It appears that the appellant is no more interested in prosecuting this appeal. The appeal is, therefore, dismissed in default for non-prosecution and stands disposed of accordingly.

(3). Thereafter, an application was filed for restoration of the appeal vide S.B. Civil Restoration Application No. 167/94 on which the order was passed by this Court on 27.8.97 when this Court gave three days time to file PF & Notice failing which, the restoration application would stand dismissed without any reference to this Court. Thereafter, on 15.10.97, the Registry in view of the earlier order of this Court dt. 27.8.97 dismissed the restoration application. Thereafter, the appellant again filed another application for restoration of restoration application bearing S.B. Civil Restoration Application No.140/99 which was allowed by the learned Single Judge of this Court vide order dt. 27.8.99 with a direction that the Restoration Application No. 167/94 shall stand restored to its original number. Again, the PF & Notices were not filed. Thereafter, the PF & Notices were filed belatedly by the appellant on which this Court passed the order on 20.9.2001 after recording the statement of the counsel for the appellant that he had filed the PF & Notices for restoration application on 20.9.01. He was directed to explain this fact to the Registry and on doing so the notices be issued. Notwithstanding the above order and the above statement of the learned counsel, PF & Notices were not filed with the Registry of this Court and the matter has been awaiting hearing since then. Thereafter, Shri A.K. Bhandari, learned counsel appearing for the respondent filed application u/O. 22 R. 4 CPC for seeking necessary directions from this Court regarding abatement of the appeal on behalf of respondent No.3.

(4). Since no such application had been filed till then, nothing prevented the appellant or his counsel for bringing this fact to the notice of this Court that the application for bringing the LRs of the deceased appellant under Order 22 Rule 4 CPC was filed but the same had infact not been listed before this Court. Personal of the record reveals that infact there is no such evidence on record as to whether the appellant had at all filed any such application. Evidently, this appears to be a gimmick which has been deployed with a view to gain time and to complicate the situation which otherwise is clear from the perusal of the record itself. The requirement of sub-rule (2) of Order 22 CPC, stipulates, as under:-

``(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.

(5). From the perusal of the record, it is revealed that no such application has been filed for substitution of legal heirs. It is stated by the learned counsel for the appellant that he filed the application for substitution of legal heirs of Smt. Narayani Devi under Order 22 Rule 4 CPC though with inordinate delay of 3 years. Though, the application for substitution of legal heirs of Narayani has been filed by the appellant under Order 22 Rule 4 CPC but the same has been filed on 7.12.2001 whereas N

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