Procedural missteps should not prevent justice; courts have discretion to allow substitution and condonation of delay in civil proceedings.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

1. Heard learned counsel appearing for the petitioner and learned counsel appearing for the respondents.

2. This petition has been filed under Article 227 of the Constitution of India for quashing of the order dated 30.05.2023 passed by learned Additional Munsif, XXV, Ranchi whereby he has been pleased to allow the substitution petition dated 22.08.2022 filed in Original Suit No. 1179 of 2019 by plaintiffs/opposite parties vide MCA No. 631 of 2022 for substitution of legal heirs of the deceased defendants of said suit being defendant No. 31, defendant No. 27, defendant No. 33 and defendant No. 16.

3. Learned counsel appearing for the petitioner submits that by order dated 30th May, 2023 the learned trial court has been pleased to allow the substitution petition and condoned the delay as well as set aside the abatement. He submits that the defendant No. 31 died on 08.03.2017, defendant No. 27 died on 11.08.2018, defendant No. 33 died on 05.02.2023 and defendant No. 16 died on 15.09.2020. He submits that in view of not filing the substitution petition within time as the limitation is prescribed for 90 days the suit against those defendants have already been abated. He submits that in absence of any separate petition with regard to the recall of the abatement the said order has been passed which is against the mandate of law. He further submits that the review petition was also dismissed by order dated 28.03.2024 and the said order is also under challenge. He further submits that in the review petition order the same mistake has been done by the learned Court and the review petition was wrongly dismissed and on this background, he submits that both the orders may kindly be quashed.

4. On the other hand, learned counsel appearing for the respondents submits that the petition was already filed with the prayer and considering the totality of the contention in the petition, the learned Court has been pleased to allow the petition and there is no illegality in the order.

5. In view of the above submission of learned counsel appearing for the parties, the Court has gone through the order which is under challenge in this criminal miscellaneous petition. It is an admitted position that defendant No. 31, defendant No. 27, defendant No. 33 and defendant No. 16 have left for their heavenly abode on 08.03.2017, 11.08.2018, 05.02.2023 and 15.09.2020 respectively and thereafter the petition of substitution was filed praying therein for condoning the delay which was allowed by the learned trial court taking into account that it was not known to the plaintiff about the death and when it has come into the knowledge the said petition was filed. It is also noted by the learned Court that it was also obligatory upon the defendant to file petition informing about the death of the defendant No. 31, defendant No. 27, defendant No. 33 and defendant No. 16 and in that view of the matter the learned Court has been pleased to allow the said petition.

6. It is well settled that mentioning the wrong provision of law cannot be a ground to reject the petition and the Court is required to consider this aspect that the justice should be done. The provision under Order 1 Rule 10 CPC speaks about judicial discretion of the Court to strike out or add parties at any stage of the suit. It can strike out any party who is improperly joined, it can add anyone as a plaintiff or defendant if it finds that such person is a necessary or proper party. The Court under Order 1 Rule 10(2) of the Code will of course act according to reason and fair play and not according to whims and caprice.

7. It is further well settled that mere title is not decisive for deciding the nature of the application. There appears to be no bar as such for filing consolidated application for the relief one under Order 22 Rule 3 or 4 CPC and another under Order 22 Rule 9 CPC and for condonation of delay under Section 5 of the Limitation Act. Even if Rules of procedure requi