An application for substitution of heirs of a deceased plaintiff can be treated as an application for setting aside the abatement, and a separate application for setting aside the abatement and condonation of delay is not necessary.

( 1 ) BY means of this petition, under Article 226 of the Constitution of India, petitioners pray for issuance of a writ, order or direction in the nature of ceriiorari quashing the judgment and order dated 7. 2. 1992 passed by VIIIth Addl. District Judge, Meerut, allowing Civil Misc. Appeal No. 259 of 1988.

( 2 ) THE relevant facts of the case giving rise to the present petition in brief arc that Smt. Ramkali, mother of respondent No. 2 to 4, filed Original Suit No. 867 of 1984 for cancellation of the will dated 3. 4. 1967 executed by Mohan Lal, her father, in favour of the petitioners bequeathing all his agricultural land and residential house situated at Meerut in their favour, and for permanent injunction directing the defendants-petitioners not to transfer the land in dispute in favour of defendant Nos. 4 to 6. The suit was contested by the defendants-petitioners. For the purpose of present case, it is not necessary to state the pleas taken by the parlies in their pleadings (plaint and written statement ). On the basis of the pleadings of the parties, issues were framed by the trial court. One of the issues related to valuation of the suit which was decided in plaintiffs favour on 12. 11. 1987. Aggrieved by the said order, the defendants-petitioners filed a civil revision. It was on 22. 3. 1988 Smt. Ramkali died leaving behind the respondent Nos. 2 to 4 (sons)and Pratap Singh (husband) as her heirs and legal representatives. The petitioners did not make any application for substitution of the heirs of Ramkali in the civil revision filed by them and permitted the said revision to be dismissed in default. Thereafter an application for substitution of heirs of Ramkali along with an application under Section 5 of Limitation Act was filed by respondent Nos. 2 to 4 on 11. 7. 1988. The said application was objected to and was opposed by the petitioners. The trial court dismissed the substitution application as barred by limitation holding that the affidavit filed in support of the substitution application was not supported by the medical certificate by its judgment and order dated 26,9. 1998. Aggrieved by the judgment and order passed by the trial court, contesting respondents filed Misc. Civil Appeal No. 259 of 1988 which ultimately came to the file of VIIIth Addl. District Judge, Meerut. The appellate court, after hearing the parties and perusing the record of the case, reversed the finding recorded by the trial court, set aside the Judgment and order passed by the trial court dated 26. 9. 1988 and allowed the appeal by its judgment and order dated 7. 2. 1992, hence the present petition.

( 3 ) I have heard learned counsel for the parties and also perused the record.

( 4 ) LEARNED counsel for the petitioners vehemently urged that the application for substitution was filed after expirty of the period of limitation prescribed for the same. The delay in filing the said application was not explained properly and that no application for setting aside the abatement was made. The Court below acted illegally in access of its jurisdiction in allowing the appeal and setting aside the order passed by the trial court. On the other hand, learned counsel for the contesting respondents supported the judgment and order passed by the Court below. It was urged that the Court below has taken into consideration all relevant facts and materials on record and thereafter rightly set aside the findings recorded by the trial court and the order passed by it. It was urged that the Court below rightly allowed the appeal and the order passed by the said court does not suffer from any illegality or infirmity. Further that it was not necessary to file application for setting aside abatement separately.

( 5 ) I have considered the submissions made by the learned counsel for the parties.

( 6 ) PRESENT petition was filed in this Court on 1. 5. 1992. On 15. 5. 1992 petitioners were permitted to serve the respondent Nos. 2 to 8 and meanwhile the