Procedural rules under Order 22 CPC should be interpreted liberally to advance justice, allowing for the condonation of delay in bringing legal representatives on record.

ORDER :

1. Heard on IA No. 1382 of 2014 which is an application for condonation of delay in filing the appeal under Section 5 of the Limitation Act, 1963. The delay is of 66 days.

Keeping in view the reasons mentioned in the application and in absence of any opposition, the same is allowed. Delay in filing the appeal is hereby condoned. Accordingly, IA No. 1382 of 2014 stands disposed of.

This miscellaneous appeal has been preferred by the appellants under Order 41 Rule 3A of Code of Civil Procedure, 1908, against the order dated 22.08.2013 passed by First Additional District Judge, Jaora, District-Ratlam (MP) passed in Civil Regular Appeal No. 09A/2013 in the effect of abatement.

2. The brief facts of the case was that the appellants have filed the civil appeal before the First Additional District Judge, Jaora, District-Ratlam (MP) against the respondents. During the pendency of the appeal, the respondent No. 1 Ismail Khan has passed away then the appellant has filed an application for bringing the legal representatives of dead respondent No. 1 on record under Order 22 Rule 4 CPC and under Order 22 Rule 9 CPC and Section 5 of Limitation Act, 1963.

3. After hearing counsel for both the parties, the first appellate court has dismissed the application on the ground that the application for bringing the legal representatives of dead respondent No. 1 is not within time and the application for condonation of delay has not been properly explained and hence appeal is abated with regard to dead respondent No. 1.

4. Being aggrieved by the impugned order, the appellants have filed this appeal and has submitted that the first appellate court has erred in not allowing the application under Order 22 Rule 4 CPC on flimsy grounds and grounds not tenable in law. It is further submitted that first appellate court has also erred in not considering the fact that respondent Ismail was served and was set ex-parte in appeal and also the fact that he had already sold the suit property pendente lite and they were joined under Order 22 Rule 10 CPC and hence they represented deceased respondent. It is also submitted that first appellate court has also erred in not considering the fact that while deciding such applications a very liberal view is to be taken and in particular the view has taken that the delay was not much. It is stated that the findings of learned lower court are perverse and contrary to law and evidence on record.

5. Per contra, counsel for the respondents has supported the order impugned and prays for rejection of this appeal.

6. I have heard counsel for the parties at length and have perused the records with due care.

7. It is true that legal representatives of deceased respondents are not brought on record within ninety days of his death then the suit shall be abated. Thereafter application for setting aside the abatement of appeal is to be filed within 90 days and if the said application is not filed then application under Order 22 Rule 9 CPC along with application for condonation of delay under section 5 of Limitation Act, 1963 is to be filed looking to the aforesaid facts.

8. Supreme Court in the case of Mithailal Dalsangar Singh vs. Annabai Devram Kini, (2003) 10 SCC 691 has held as under:

“8. Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside the abatement. So also a prayer for setting aside abatement as regards one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within