Courts should adopt a liberal approach to substitution and abatement to prioritize substantial justice over procedural technicalities.

JUDGMENT :

Jaspreet Singh, J.

1. Heard Shri I. D. Shukla, learned counsel for the petitioners and Shri Rakesh Kumar Srivastava, learned counsel appearing for the private respondents.

2. Under challenge is the order dated 18.12.2001 passed by the Court of Additional District Judge, Court No.10, Faizabad in Regular Civil Appeal No.48 of 1990 ( Kalideen and others Vs. Ram Nihore and others ) whereby the Civil Appeal No.48 of 1990 has been abated.

3. In order to appreciate the controversy involved in the instant petition certain facts leading upto the instant petition are being noticed first.

4. Regular Suit No.394 of 1983 was filed by Ram Nihore seeking a decree of possession [the predecessor in interest of the private respondents no.1, 2 and 3] against Kalideen who was the petitioner no.1 (after his death now represented by his legal heirs). The suit of Ram Nihore came to be decreed by means of judgment and decree dated 26.03.1990. Kalideen being aggrieved preferred regular civil appeal under Section 96 C.P.C which was registered as Appeal No.48 of 1990. Ram Asrey the father of the petitioners no.3 and 4 died on 02.12.1992. An application for substitution was moved before the first appellate court on 16.03.1993. However, while the said application were pending, two other persons, namely, Turanti and Gangu also died and an application to bring on record the heirs of the said deceased Turanti and Gangu was also moved.

5. In the aforesaid backdrop, while the said application for substitution was pending, Ram Nihore, the father of the private respondent also expired. However, in so far as the application for substitution of Ram Nihore is concerned, there was a discrepancy regarding his date of death. As per the petitioners, the date of death of Ram Nihore was mentioned as 28.05.1997 whereas per the private respondent Ram Nihore died on 19.01.1996.

6. It is in the aforesaid backdrop that when the application for substitution came to be considered by the first appellate court, it allowed the application regarding Ram Asrey, and application for substitution relating to Turanti and Gangu were not pressed as they were proforma parties. However, the main contest was in respect of the substitution application moved by the petitioners (who were the appellants before the first appellate court). The application for substitution was contested by the private respondents and the first appellate court by means of order dated 18.12.2001 dismissed the application for substitution on the ground that the petitioners had not disclosed the true and correct date of death of Ram Nihore. It also noticed that there was no proper application for seeking condonation of delay and setting aside abatement. Accordingly, in absence of any proper application or explanation, the application for substitution was not bonafide, hence rejected the same, as a consequence, the first appeal preferred by the petitioners stood abated.

7. This order has been challenged by the petitioners and it is urged that the first appellate court was not justified in dismissing the application for substitution, since it was the duty of the pleader of the respondents in the first appeal (counsel of Ram Nihore) to have informed the first appellate court regarding the date of death of Ram Nihore.

8. It is urged that even if there was a discrepancy in the date of death but the same was not deliberate and in any case once the legal heirs of Ram Nihore were contesting the proceedings, the court ought to have taken liberal view and delay in moving the applicatio