Point of law: A person claiming to be the legal representative cannot make an application under Rule 9(2) of Order 22 for setting aside the abatement or dismissal, if he had already applied under Order 22 Rule 3 for being brought on record within time and his application had been dismissed after an enquiry under Rule 5 of Order 22, on the ground that he is not the legal representative.

JUDGMENT :

1. Heard Mr. Rajeiu Kumar Tripathi, learned counsel for appellants and Mr. Shaquiel Ahmad, learned counsel for respondent.

2. First Appeal from Order under Section 104 read with Order 43, Rule 1 (k) read with Section 141 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) has been filed against order dated 31.07.2012 passed in Regular Civil Appeal No.53 of 1995. By means of the impugned order, the application for substitution filed under Order XXII Rule 3 has been rejected primarily on the ground that it was unaccompanied by any application for condonation of delay and application for setting aside abatement.

3. Learned counsel appearing on behalf of the respondent has raised a preliminary objection regarding maintainability of the appeal in view of the fact that an appeal under Order 43, Rule 1 (k) can be filed only against an order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit. It has been submitted that since in the present case, the order under challenge has merely rejected the application filed under Order XXII Rule 3 of the Code, therefore, there is no refusal to set aside abatement in terms of Rule 9 of Order XXII and the present appeal, therefore, is not maintainable. Learned counsel for respondent has relied upon the decision of Hon'ble the Supreme Court in Mangluram Dewangan v. Surendra Singh and others reported in (2011) 12 SCC 773.

4. With regard to the preliminary objection raised by learned counsel for respondent, learned counsel for appellants has drawn attention to the record of appeal with the submission that the application for substitution filed under Order XXII Rule 3 was duly accompanied by an application seeking condonation of delay and was in fact on record as Paper No.C-62. It is submitted that aforesaid application was duly supported by an affidavit and, therefore, the lower appellate court has recorded a wrong finding that the application for substitution was unaccompanied by any application seeking condonation of delay. It has been further submitted that the rejection of application filed under Order XXII Rule 3 of the Code would in fact have the consequence of abating the proceedings and would as such amount to dismissal of appeal due to which the present appeal would be maintainable in terms of Order 43 Rule 1 (k). It has also been submitted that an application for condonation of delay and seeking substitution would have inherent relief of setting aside abatement without any specific application being made particularly in terms of Articles 120 and 121 of the Limitation Act. Learned counsel has relied upon a decision of Hon'ble Single Judge in Mst. Fakhrun and others v. Hafizulla alias Kalloo and others reported in 1999 (17) LCD 906 to substantiate his submissions.

5. Learned counsel has also submitted that the lower appellate court has also committed an error in dismissing the appeal as a whole without considering the fact that an application for substitution of appellant no.1 on record as Paper No. A-55/1 was already pending consideration although the same is not under challenge.

6. Upon consideration of material on record and submissions advanced by learned counsel for the parties, it is apparent that Application A-59 was filed by applicant Shyam Sunder Jutshi for his substitution in place of appellant no.3. The application was filed by the said applicant claiming himself to be the legal heir of deceased appellant no.3. Objections were filed against the application which were taken on record as Paper No.C-65. The impugned order dated 31.07.2012 has indicated that no formal prayer for condonation of delay has been filed nor any formal prayer for setting aside of abatement has been made which has natural consequence as to non-bringing of legal heirs of the deceased party on record in time. In pursuance of aforesaid, the application A-59 was rejected as having not been filed within time and not containing a prayer for setting aside