ORDER

1. This review petition has been preferred by the applicant/LR of appellant/defendant/tenant challenging the order dated 07.12.2022 passed in second appeal No.2358/2022 whereby, second appeal filed against concurrent judgment and decree of eviction passed under the general law as well as of arrears of rent, was dismissed at the admission stage itself and while dismissing the second appeal, upon request of the counsel for appellant/tenant, one year time to vacate the tenanted premises was granted, which has been expired on 31.12.2023.

2. This review petition has been preferred with delay of 80 days and by filing I.A. No.5213/2023 condonation of delay has been sought on the premise that due to ailment, the appellant-D.F. Dias had died on 4.11.2022 and his wife i.e. the applicant aged 79 years, being under shock, could not contact to the counsel and during this period she also got fracture in her leg, due to which she remained on bed and could not instruct her counsel to file the review petition.

3. Even after issuance of notice of the said I.A., no reply/counter affidavit has been filed, therefore, in absence of any rebuttal, ground taken for condonation of delay, appears to be based on bonafides, hence by allowing the application, delay in filing of the review petition is hereby condoned. Accordingly, I.A. No.5213/2023 is disposed off.

4. Also heard on admission.

5. In this review petition several grounds have been taken but during course of argument, review has been sought mainly on the ground that before passing order in second appeal on 7.12.2022, sole appellant had died on 4.11.2022, hence the counsel had no right to argue the second appeal on behalf of the deceased appellant and the order passed in second appeal by this Court on 7.12.2022 is nullity and cannot be given effect. In support of his submissions, learned counsel placed reliance on decision of Supreme Court in the case of Gurnam Singh (D) through LRs and others v. Gurbachan Kaur (D) by LRs & others (2017) 13 SCC 414. Relevant paragraphs of which are as under :--

“17. It is not in dispute that the appellant and the two respondents expired during the pendency of the second appeal. It is also not in dispute that no steps were taken by any of the legal representatives representing the dead persons and on whom the right to sue had devolved to file an application under Order 22 Rules 3 and 4 of the Code of Civil Procedure,1908 (for short, `the Code') for bringing their names on record in place of the dead persons to enable them to continue the lis.

18. The law on the point is well settled. On the death of a party to the appeal, if no application is made by the party concerned to the appeal or by the legal representatives of the deceased on whom the right to sue has devolved for substitution of their names in place of the deceased party within 90 days from the date of death of the party, such appeal abates automatically on expiry of 90 days from the date of death of the party. In other words, on 91st day, there is no appeal pending before the Court. It is "dismissed as abated".

19. Order 22, Rule 3 (2) which applies in the case of the death of plaintiff/appellant and Order 22, Rule 4 (3) which applies in the case of defendant/respondent provides the consequences for not filing the application for substitution of legal representatives by the parties concerned within the time prescribed. These provisions read as under:--

Order 22, Rule 3 (2)

"Where within the time limited by law no application is made under sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff."

Order 22, Rule 4 (3)

"Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant."

20. In the case at hand