ORDER

1. This miscellaneous petition has been preferred challenging the order dated 1.8.2019 passed by 1st Civil Judge Class-I, Sidhi in Civil Suit No. 91-A/2015 whereby learned Court below has dismissed the applications filed under Order 22 rule 4, 9 CPC and section 5 of the Limitation Act and held that the suit has abated against the defendant 3 Motilal Singh.

2. Learned counsel for the petitioners submits that they were residing with their in-laws and were not aware about death of defendant/respondent 3 - Motilal Singh and came to know about the death of defendant 3 on 10.2.2017 by way of notice issued by Lok Adalat. He further submits that the learned Court below has wrongly dismissed the application as barred by limitation of one year, whereas it was barred by only seven months. He submits that the explanation of delay offered in the application was proper and reasonable, which ought to have been accepted by learned trial Court. With these submissions, he prays for allowing the petition.

3. Learned counsel appearing on behalf of the legal representatives of respondent/defendant 3-Motilal Singh supports the impugned order and submits that the petitioners/plaintiffs did not move the application within limitation and they were aware about the death of defendant 3, therefore, she submits that the learned Court below has not committed any illegality in passing the impugned order and prays for dismissal of the petition.

4. Heard learned counsel for the parties and perused the record.

5. Undisputedly, defendant 3-Motilal Singh had died on 9.2.2016 and the application for substitution of legal representatives as well as application under Order 22 rule 9 CPC for setting aside abatement and for condonation of delay under section 5 of the Limitation Act were filed on 10.2.2017.

6. Bare perusal of the impugned order shows that the learned Court below has not even considered the period of delay occurred in filing of the application under Order 22 rule 9 CPC and has dismissed the application, as barred by limitation of one year.

7. It is also apparent that the learned Court below has not taken into consideration the reason of delay and the explanation offered in that regard by the plaintiffs in the application, which is sufficient to condone the delay because the plaintiffs were not aware about death of respondent/defendant 3 and no intimation was given on behalf of defendant 3 as per provision contained in Order 22 rule 10-A CPC.

8. In view of the aforesaid and in my considered opinion the learned Court below has committed illegality in dismissing the applications under Order 22 rule 4, 9 CPC and section 5 of the Limitation Act. The explanation offered with regard to the delay in moving the application under Order 22 rule 9 CPC appears to be reasonable and in the existing circumstances there was sufficient cause for not filing the application within the fixed period, as such the delay in filing the application is hereby condoned and the abatement is set aside. Resultantly, the learned trial Court is directed to permit the plaintiffs to substitute the legal representatives of respondent/defendant 3 Motilal Singh on record and then to proceed further in accordance with the law.

9. The question of death of other respondents/defendants shall be considered by the learned trial Court and the parties are free to move the requisite applications with regard to death of other defendants/respondents.

10. With the aforesaid observation, this petition is allowed and disposed off.