The court emphasized that the delay in filing the application for setting aside the abatement should be considered in light of the circumstances and that a lenient view should be adopted in such cases.

ORDER :

1. This petition under Article 227 of the Constitution of India has been filed against the order dated 26/10/2004 passed by Third Additional District Judge, Gwalior and order dated 10/01/2001 passed by Fifth Civil Judge, Class-I, Gwalior was affirmed in Civil Suit No. 29-B/2000 filed by the petitioner was dismissed as abated.

2. The necessary facts for disposal of the present petition in short are that, the petitioner filed a civil suit on 10/12/1994 against Smt. Leela Bai for recovery of loan amount. It appears that on 13/01/1995, Smt. Leela Bai sole defendant expired, but no application under Order 22 Rule 4 C.P.C. was filed within a period of 90 days. Thereafter, it appears that on 31/07/1995, the petitioner filed an application under Order 22 Rule 4 C.P.C. thereby disclosing the names of the legal representatives of deceased Leela Bai. However, in this application the date of death of Leela Bai was not mentioned. It appears that in compliance of order dated 13/03/1996, the petitioner filed an application on 26/06/1996 mentioning that the date of death of the sole defendant as 25/04/1995.

3. The respondents filed their response to the application filed under Order 22 Rule 4 C.P.C and pleaded that the sole defendant Leela Bai has expired on 13/01/1995 and the application for bringing her legal representatives on record has been filed after six months of her death and it was claimed that the sole defendant Leela Bai did not die on 25/04/1995 as disclosed by the petitioner in its application dated 26/06/1996.

4. The said reply was filed on 13/08/1996. Thereafter, the petitioner filed an application under Order 22 Rule 9 C.P.C. for setting aside the abatement. An application under Section 5 of Limitation Act was filed on 03/12/1996 for condoning the delay in filing an application for setting aside the abatement.

5. The Trial Court by order dated 10/01/2001 rejected the application filed under Section 5 of Limitation Act, under Order 22 Rule 9 C.P.C. and as a consequence also application under Order 22 Rule 4 C.P.C. was also rejected merely on the ground that the petitioner has failed to disclose the bonafide reasons for not filing the application within a period of limitation and accordingly, the suit has abated. Being aggrieved by the order dated 10/01/2001 passed by Fifth Civil Judge, Class-I, Gwalior in Regular Civil Suit No. 29-B/2000, the petitioner preferred an appeal, which was registered as Miscellaneous Appeal No. 06/2001 and the Appellate Court i.e. Third Additional District Judge, Gwalior by impugned order dated 26/10/2004 dismissed the appeal.

6. Challenging the orders passed by the Courts below, it is submitted by the counsel for he petitioner that no application under Order 22 Rule 10-A C.P.C. was ever filed and no information was ever given by the counsel for the defendant and, therefore, the petitioner had no opportunity to gather the information regarding the death of sole defendant. It is further submitted that the petitioner is a bank/institution and, therefore, also it was not possible to have updated information about the death of sole defendant. As soon as the petitioner came to know about the death of the defendant, it immediately filed an application under Order 22 Rule 4 C.P.C. on 21/07/1995 because as per the information received by the petitioner, the deceased had died on 25/04/1995. However, only after the respondents entered their appearance, they disclosed that the deceased/sole defendant had died on 13/01/1995 and as soon as that information was disclosed, the petitioner filed an application under Order 22 Rule 9 C.P.C. and thereafter under Section 5 of Limitation Act. It is submitted that the provisions of Order 22 Rule 9 C.P.C. and under Section 5 of Limitation Act should be given liberal meaning. Even assuming that the sole defendant had died on 13/01/1995, the petitioner had a period of 90 days to file an application for bringing her legal representatives on record. The application was filed