Appellants aggrieved by order dated 20.2.1998 has filed present appeal. By the impugned order, appeal filed by Pooranlal against Phool Singh was held to be abated and appellants were not permitted to be substituted in place of Pooranla I. Apart from this, another application filed by appellants under Order 22 rule 4, Code of Civil Procedure for substitution of legal heirs of Phool Singh was also rejected by the lower appellate Court.

The facts of the case are as under : Pooranlal suffered a decree for eviction in Regular Civil Suit No. 121-A of 1994 passed by VII Civil Judge, Class II, Bhopal on 28.4.1995. During the pendency of the appeal Pooranlal died on 4.6.1996. An application under Order 22 rule 3, CPC was filed on 6.9.1996 by which appellants sought permission of the Court for substitution in place of Pooranlal. The aforesaid application was barred by four days. On 2.2.1998 an application under section 5 of Limitation Act was filed for condonation of delay in filing the application under Order 22 rule 3 CPC.

During the pendency of the aforesaid proceedings, plaintiff respondent Phool Singh also died on 11.8.1997. Counsel appearing for respondent informed on 25.9.1997 that Phool Singh has died. Appellants filed an application under Order 22 rule 4 CPC on 9.12.1997 which was also barred by 29 days. Respondents contested the aforesaid application on various grounds. The lower appellate Court by impugned order rejected all the applications. Consequently, appeal was held to be abated and confined to record room.

Learned counsel for appellants submits that there is sufficient cause for not filing the application within 90 days under Order 22 rule 3 CPC.

Subsequently application under section 5 of Limitation Act was filed on 2.2.1998 and the Court ought to have taken a liberal view in the case. The provisions are procedural in nature and the litigant cannot be penalised on the basis of aforesaid procedure. The lower appellate Court committed error and application ought to have been allowed by condoning four days' delay in filing the application. Learned counsel for the respondents opposing the contention aforesaid, contended that application under Order 22 rule 3 CPC ought to have been filed alongwith application under section 5 of Limitation Act. He placed reliance on a judgment of this Court in Pooran Singh v. Indra Rajput [1997 (1) MPU 280] and contended that application under Order 22 rule 3 CPC without application under section 5 of Limitation Act was not an application in the eye of law and the application ought to ha\'e been dismissed. Considering the aforesaid contention, it is not disputed that the appellant belongs to backward class and they have filed the application beyond 90 days but on 94th day after the death of Pooranlal. In the application under section 5 of Limitation Act, it is stated that they belong to Dhobi caste and are ignorant of procedure of the Court, and the application could not be filed within time. Application under section 5 of Limitation Act may be treated as an application under Order 22 rule 9 CPC for setting aside the abatement caused because of not filing the application within the period of 90 days. Looking to the contents in application dated 2.2.1998 it is treated as an application under Order 22 rule 9 CPC. The Apex Court in Sital Prasad Saxena v. Union of India (AIR 1985 SC 1) has considered the law and held:

Approach to the applications seeking condonation of delay in moving the application for substitution of parties who died during the pendency of civil appeal in the High Court has to be as observed in AIR 1983 SC 355 and (1982) 1 SCC 476. In the present case the High Court unfortunately committed an error in rejecting the application for condoning the delay. It is the High Court which had to satisfy itself that the petitioner made out sufficient cause which prevented it from moving the application for substitution in time and not the trial Court. The High Co