The main legal point established in the judgment is that the timeliness of an application for substitution, supported by necessary evidence, should be considered in determining the rights of the lawful heirs of a deceased plaintiff to prosecute a suit, and the absence of a formal order of substitution should not prejudice their rights.

Mr. Aparesh Kumar Singh, J.

Heard learned counsel for the petitioners and learned counsel representing the respondent no.2/plaintiff no.3.

2. Learned court of Civil Judge, Senior Division-II, Jamtara has by the impugned order dated 9th January 2017 passed in Title Suit No.23/2005 allowed substitution of the legal heirs of plaintiff no.1 Anil Hembram being his widow and daughter (respondent nos. 3 and 4 herein).

3. Brief facts relevant for consideration of the issues in controversy are referred to herein after. An application was made on 6th August, 2008 for substitution of the legal heirs of plaintiff no.1 (his widow and daughter) before the learned court stating that he had died on 27th May 2008. An application for condonation of delay was also made under Section 5 of the Limitation Act on the same day. It was stated therein that the plaintiffs are tribals by caste and illiterate Santhals. It also reiterated that plaintiff no.1 died on 27th May 2008. A petition was also filed on the same day by plaintiff no.2 stating that plaintiff no.1 had died on 27th May 2008. Defendants were allowed time to file rejoinder to the same as is evident from the order dated 6th August 2008. A rejoinder was also filed on the next date i.e. 27th August 2008 stating that the death occurred on 21.04.2008 and the application for substitution is not within time. It is evident from the order dated 4th December 2008 (part of Annexure-9 series to the supplementary affidavit) that death certificate of plaintiff no.1 was also produced before the learned court and kept on record. Undisputedly, the trial proceeded thereafter and evidence of the plaintiffs and defendants were adduced. Defendants evidence was concluded on 24th August 2016. A petition was filed thereafter on 22nd November 2016 by the legal heirs of the deceased plaintiff no.1 before the learned trial court. It also mentioned the death of plaintiff no.1 as on 27th May 2008 and the application made earlier on 6th August 2008 for substitution of his legal heirs I.e. the widow and daughter. A formal prayer for substitution was again made through the instant petition. Learned trial court took note of the aforesaid facts vide order dated 1st December 2016 and also found that no order was passed on the petition dated 6th August 2008 earlier. Upon consideration of the plea of the rival parties, by the impugned order dated 9th January 2017 prayer for substitution has been allowed taking note of the application dated 6th August 2008. Learned trial court also was of the view that on account of mistake of fact such substitution has not been carried out in the records earlier. The suit is of the year 2005 itself.

4. Learned counsel for the petitioners has assailed the impugned order inter-alia on the following grounds :-

(I) That without formal order of substitution having been made, the suit abated as against plaintiff no.1.

(ii) The legal heirs of the plaintiff no.1, being conscious of the abatement of the suit, had also filed an application under Section 5 of the Limitation Act for condonation of delay and setting aside of the abatement.

(iii) The trial has proceeded for more than 9 years since the date of death of plaintiff no.1 without his formal substitution.

(iv) No order of abatement is required to be recorded, if substitution is not carried out within the time prescribed under Order 22, Rule 3 of the Civil Procedure Code.

(v) The substitution of the legal heirs of the plaintiff no.1 after such lapse of time has definitely prejudiced the defendants/petitioners as a valuable right had been created in their favour.

(vi) The lapse on the part of the counsel for the legal heirs could not be condoned in such a perfunctory manner.

5. Learned counsel for the petitioners has relied upon the judgment rendered by the Hon'ble Apex Court in the case of Perumon Bhagvathy Devaswom v. Bhargavi Amma, reported in (2008) 8 SCC 321. He has also relied upon the judgment rendered by the Hon'ble Apex Court in the case of