Legal representatives must be afforded a reasonable opportunity to file necessary applications to ensure justice, and the dismissal of appeals due to procedural oversight must be carefully scrutinized to prevent injustice.

ORDER :

Dwarka Dhish Bansal, J.

This Civil Revision has been preferred by the legal representatives of the original appellant/plaintiff-Roshanlal Tiwari (dead) challenging the order dated 13-2-2021 passed by 3rd Additional District Judge, Rewa in Civil Appeal No. 7/21 which has been dismissed as having abated for want of filing of application under Order 22, Rule 9, CIVIL PROCEDURE CODE .

2. Short facts of case are that the plaintiff had instituted a suit for declaration of title and restoration of possession in respect of the agriculture lands described in the plaint and after holding trial, learned trial Court dismissed the suit vide judgment and decree dated 29-1-2013 passed in Civil Suit No. 87-A/2010 and the judgment and decree passed by learned trial Court was challenged by original plaintiff-Roshanlal Tiwari but during pendency of the civil appeal, he died on 9-12-2015. Although applications under Order 22, Rule 3, CIVIL PROCEDURE CODE and section 5 of the LIMITATION ACT , 1963 were filed but for want of application under Order 22, Rule 9, CIVIL PROCEDURE CODE , the applications under Order 22, Rule 3, CIVIL PROCEDURE CODE as well as under section 5 of the LIMITATION ACT were dismissed and consequently the civil appeal also was dismissed as abated.

3. Learned counsel for the applicants (LRs of original plaintiff/appellant/ deceased Roshanlal Tiwari) submits that due to no knowledge of pendency of civil appeal, requisite application under Order 22, Rule 3, CIVIL PROCEDURE CODE could not be filed timely and after getting knowledge of pendency of the civil appeal upon receipt of letter issued by the counsel, legal representatives contacted to the counsel, who filed applications under Order 22, Rule 3, CIVIL PROCEDURE CODE as well as under section 5 of the LIMITATION ACT supported by affidavit(s) but for the reasons not known to the applicants, application under Order 22, Rule 9, CIVIL PROCEDURE CODE was not filed by the counsel. Resultantly, learned first Appellate Court taking harsh view and even without giving any opportunity of filing application under Order 22, Rule 9, CIVIL PROCEDURE CODE , dismissed the civil appeal as abated. Learned counsel for the applicants submits that in the available facts and circumstances of the case, either the applications filed under Order 22, Rule 3, CIVIL PROCEDURE CODE and section 5 of LIMITATION ACT ought to have been allowed or the applicants ought to have been given opportunity to file the application under Order 22, Rule 9, CIVIL PROCEDURE CODE before dismissing the civil appeal as abated. With the aforesaid submissions, he prays for allowing the Civil Revision.

4. Learned counsel for the respondent 1 supports the impugned order and prays for dismissal of the civil revision. He submits that in absence of prayer for setting aside abatement, especially for want of application under Order 22, Rule 9, CIVIL PROCEDURE CODE , learned Court below has not committed any illegality in dismissing the civil appeal as abated. He further submits that the order dismissing the civil appeal as abated upon dismissal of application under section 5 of the LIMITATION ACT , is not revisable in view of proviso appended to section 115(1), CIVIL PROCEDURE CODE and he prays for dismissal of the Civil Revision as not maintainable.

5. Learned counsel for the State also supports the impugned order and prays for dismissal of the revision.

6.