An order dismissing a suit as abated is appealable under O.43, R.1(k) of the Civil Procedure Code, 1908.

1. Inder Chand and others, plaintiff-respondents, filed a suit for declaration to the effect that mutation No. 11427 dt. 18th August, 1978, of the part of land measuring 85 Kanals 11 Marias, is null and void and ineffective against the rights of the plaintiffs, and for permanent injunction restraining the defendants from interfering with their possession and lawful cultivating possession. During the pendency of the suit, one of the plaintiffs Des Raj died. So, an application dt. 13th May, 1982, was filed by Smt. Lajo, the widow; Karam Chand, Dharam Pal, Ram Pal, minor sons of Des Raj deceased, and Kamla and Palo, his daughters, for being impleaded as his legal representatives. This application was contested by the defendants, inter alia, on the ground that it was barred by time. The learned Sub Judge found that the application filed by Smt. Lajo, etc., was not in accordance with the Rules and Orders framed by the Punjab and Haryana High Court, and was, thus, liable to be dismissed. Consequently, he dismissed the application vide order dt. 8th June, 1982, and in the result the suit was also dismissed vide separate orders of the same date, having abated due to the death of Des Raj, plaintiff. Dissatisfied with the same, the plaintiffs filed an appeal against the aforesaid orders of the trial Court. The learned Additional District Judge accepted the appeal, set aside the impugned orders appealed against and remanded the case to the trial court for passing a fresh order on the application moved by the legal representatives of Des Raj deceased in accordance with law, after allowing the parties to lead evidence, if necessary. Dissatisfied with the same, the defendants have filed this petition in, this Court.

2. At the time of motion hearing it was contended on behalf of the petitioners that the appeal before the lower appellate court was not competent against the orders under O.22, Rr.3 and 5 of the Civil P.C. In these circumstances, the only question to be decided in this petition is whether the appeal before the lower appellate court against the orders of the trial court dismissing the suit having abated, was maintainable or not. According to the learned counsel, since the application filed on behalf of the legal representatives of the deceased plaintiff Des Raj was dismissed under O.22, R.5, no appeal, as such, was competent against the said order. According to the learned counsel, the appeal provided under O.43, R.1(k) is only against an order under R.9 of O.22, refusing to set aside the abatement, and, therefore, no appeal, as such, against the order dismissing the application for bringing the legal representatives on record was competent. In support of his contention, he referred to Madan Naik V/s. Mst. Hansubala Devi, AIR 1983 SC 676, Shri Shiv Idol Shiv Mandir V/s. Sanatam Dharam Pratinidhi Sabha, (1976) 78 Pun LR 589 and Des Raj V/s. Om Parkash, 1985 Rev LR 401 : (AIR 1986 Punj and Har 3).

3. After hearing the learned counsel for the parties and going through the case law cited at the Bar, I do not find any merit in this petition. It is the common case of the parties that the trial court dismissed the suit as abated as a consequence of the application for, bringing the legal representatives on record having been dismissed. The plaintiffs filed an appeal against the said orders before the lower appellate court. Such an appeal was maintainable in view of O.43, R.1(k) which provides as under :-

"1. Appeals from orders :-

An appeal shall lie from the following orders under the provisions of S. 104, namely :- x x x x x x x x x

(j) an order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit."

Thus, it has been specifically provided therein that an appeal will lie against an order passed under O.22, R.9, refusing to set aside the abatement or if the suit has been dismissed as abated. In the present case, the plaintiffs filed the appeal against the order of the trial court dismissing their