The main legal point established in the judgment is that delay in filing applications for substitution and condonation of delay cannot be condoned on insufficient grounds and by abusing the process of law.

Ved Prakash Vaish, J.

There is an application under Order XXII Rule 3 read with Section 151 Code of Civil Procedure, 1908 for substitution of legal representatives of appellant no. 1, namely, Gaya Deen and for substitution of legal representatives of the sole respondent, Mangaroo, bearing Civil Misc. Substitution Application No. 364075 of 2016 and an application for condonation of delay bearing no. 364074 of 2016 in filing the application for substitution. Reply/counter affidavit on behalf of respondent has been filed.

2. There is another application for abatement bearing no. 85602 of 2015 filed on behalf of legal heirs of the deceased-respondent.

3. I have heard learned Counsel for both the parties and perused the material placed on record.

4. Learned Counsel for the appellants/applicants submits that the appellant no. 1, namely, Gaya Deen died on 8.1.2005 and the sole respondent, namely, Mangaroo died in the year 1998 and Jokhan, son and legal representative of sole respondent also died in the year 1991. The appellant no. 1 and the sole respondent left behind the legal heirs mentioned in para 9 of the affidavit which has been filed along with the application for substitution.

5. Learned Counsel for the appellants/applicants submits that the appellant who is the son of the deceased-appellant no. 1 was minor and he was not aware about the pendency of the present second appeal. He also submits that the application for substitution could not be filed as the applicant was not aware about the pendency of the present second appeal, the applicant came to know regarding pendency of the present second appeal in the month of October, 2016 when the legal representative of the sole respondent threatened to dispossess the applicant from the disputed property.

6. The applications have been opposed by learned Counsel for the proposed LRs of the respondent. Learned Counsel for the proposed LRs of the respondent submits that the applicant was fully aware regarding the death of appellant no. 1 and the death of sole respondent who died long back but no effort was made by him to move an application for substitution of the legal representatives. He further pointed out that in the revenue records, the name of deceased-appellant no. 1, namely Gaya Deen was deleted and in his place, the name of his legal representative was recorded vide order dated 28.1.2008 but the applicant did not move any application for substitution of the legal representative. He further submits that the applicant is residing in the same locality and he was well aware about the death of the sole respondent but no application for substitution of the legal representative of the respondent was filed.

7. At this juncture, it is relevant to mention here that the provisions of Order XXII, Rule 3 of Code of Civil Procedure, 1908 provides that where the plaintiff dies, and the right to sue survives, the Court, on an application made in that behalf, shall cause legal representatives of the deceased-plaintiff to be made a party and shall proceed with the suit.

8. Order XXII, Rule 11 of Code of Civil Procedure, 1908 provides that in the application of this order to appeals, the word “plaintiff” shall be held to include “appellant”. Thus, the Order XXII, Rule 3 of Code of Civil Procedure, 1908 makes it obligatory to seek substitution of legal representatives of the deceased-appellants/plaintiffs within the specified period.

9. As regards, the limitation for filing the application for substitution of legal representatives, it may be mentioned that Article 120 of Schedule of Limitation Act, 1963 provides period of 90 days for moving an application for substitution. The Limitation Act, 1963 also provides period of 60 days for setting aside the abatement.

10. In the present case, the appellant no. 1 stated to have expired on 8.1.2005 and the application for substitution of legal representative was filed on 24.11.2016 i.e. after more than 11 years. Similarly, the respondent, namely, Mangaroo