A court should exercise discretion contemplated by sub-rules (1) and (2) of Rule 4 of Order 16 C.P.C. on judicially acceptable considerations, having regard to the conduct of the party, required to summon the witnesses, before the date on which the order adverse to the party is passed.

V. K, Mehrotra, J.—Appellant Ganga Ram instituted suit No. 309 of 1983 for declaration and permanent injunction in respect of certain land situate in village Beru Tappa Balduhak, Tahsil and District Hamirpur. The suit was dismissed by the learned Sub-Judge 1st Class (II) Hamirpur on October 19, 1985. Ganga Ram assailed the decree by filing Civil Appeal No. 183 of 1985 on December 12, 1985.

2. During the pendency of the appeal the defendant-respondent Beli Ram died on December 12, 1986, Though the respondent was represented by a Counsel, no information was given to the Court about it as required by Order 22 Rule 10-A, C.P.C.

3. It was on September 28, 1988, that the learned Counsel for the defendant-respondent, informed the Court about the death of the respondent. The appeal was posted for hearing on that date before the learned District Judge A prayer was made on behalf of the appellant for time to bring the legal representatives of the defendant-respondent on record. The case was directed to come up on November 15, 1988.

4. On that date the Court directed issue of notice to the proposed legal representatives of the deceased on an application under Order 22 Rule 4 C.P.C. which had been made on behalf of the appellant. On December 22, 1988, as is evident from the order sheet of the lower appellate court, the case was directed to come up for reply and consideration on January 11, 1989. On that day the consideration of the application was deferred to February 9, 1989.

5. Since there was delay in the presentation of the application for substitution and an objection to that effect had been taken on behalf of the proposed heirs of the defendant-respondent, the learned District Judge framed relevant issues for consideration on Feb. 9, 1989, when the case came up before him. The first two issues were: "1. Whether there is sufficient cause to condone the delay in filing this application for bringing on record legal representatives of deceased-respondent Beli Ram? OPA.

2. Whether the appeal has not abated? OPA". March 27, 1989, was fixed as the date for evidence on behalf of the plaintiff-appellant 6- On March 27, 1989, the appellants witnesses were present but the Presiding Officer was on leave. The case was directed to come up on March, 31, 1989, on which date it was adjourned to May 8, 1989, for the appellants evidence. In respect of another witness, namely, a Doctor, it is recorded on the margin of the order sheet that the summons had been received unserved for want of adequate diet money. Process-fee was directed to be filled within two days.

7. When the case was taken upon May 8, 1989 the order that the learned District Judge passed was that neither the appellant was present nor were his witnesses. The summonses which had been issued to the doctor had been received unserved because of less diet money having been deposited.

8. The learned District Judge then observed in his order that— "......In the circumstances no further adjournment for appellants evidence is justified and I close the appellants evidence. Since onus of both the issues framed on 9-2-1989 was on the appellant, for want of evidence, both the issues stand decided against the appellant...the appeal stands dismissed as having abated". The above order of May 8, 1989, has been assailed by the plaintiff-appellant in the present Regular Second Appeal.

9. On July 13, 1989, this Court directed notice, pending admission, to issue to the proposed legal representatives of deceased Beli Ram,

10. Shri R. K. Sharma has appeared on behalf of the proposed heirs. On December 19, 1989, a prayer was made before the Court that the record of the courts below be summoned so that the appeal may be disposed of finally at this stage itself, if possible.

11. After hearing learned Counsel for the parties I am of opinion that the appeal deserves to be allowed and the matter sent back to the lower appellate court for decision in accordance with law. From the narration of facts, as aforesaid, it i