IMPORTANT POINT
Substitution – Limitation – For setting aside abatement of proceedings, court is supposed to strike a balance – There is no bar to exercise by Court/Tribunal, of its discretion, to condone delay in absence of a formal application.

JUDGMENT

This Civil Revision Petition has been directed against the order dated 31.10.2013 passed by the court of learned Principal District Judge Baramulla (for short ‘trial court’) on an application for bringing the legal heirs of defendant No.1-deceased Sheikh Mohammad Sadiq, on record, in a suit titled “Jammu & Kashmir Bank Ltd. Branch T.P. Baramulla Vs. Sheikh Mohammad Sadiq & Anr.”

2. Vide impugned order, the trial court decided an application moved by the plaintiff-Jammu & Kashmir Bank Ltd., for bringing the legal heirs of defendant-Sheikh Mohammad Sadiq, on record, and the said application was allowed and the legal heirs of the deceased- defendant No. I were ordered to be substituted in his place.

3. Aggrieved of the impugned order, the petitioners herein have assailed the impugned order on the grounds, that the deceased defendant No.1-Sheikh Mohammad Sadiq had died on 01.02.2002 and being well known political leader of the Valley, the news of his death was carried out by all the local dailies as well as electronic media and this fact was also known to the plaintiff-Bank, however, no application was filed for brining on record his legal heirs within six months of limitation period from the date of the death of the deceased; that on 18.07.2002, learned counsel for respondent No.1 i.e., plaintiff- J&K Bank Ltd. made a statement that the defendant No.1 in the suit, namely Sheikh Mohammad Sadiq had died and the plaintiff intended to move an application for bringing his legal representatives on record; that the period of limitation would expire on 01.08.2002, meaning thereby that from 18.07.2002 to 01.08.2002 if the application would have been moved by the plaintiff-respondent No.1 herein, the same would have been within time, however, the plaintiff did not do so, instead filed an application on 17.08.2002 for bringing on record legal representatives without filing an application under Section-5 of the Limitation Act; that the suit had abated not only against the plaintiff but against defendant No.2 also as a whole on 01.08.2002 in view of the provisions of Sections-133 and 134 of the Contract Act; that once the suit is abated on 01.08.2002, then in that eventuality the plaintiff-Bank was under an obligation to file an application for setting aside the order of abatement in terms of Rule 9 of Order 22 and this aspect had not been considered by the trial court, as such the order impugned is bad and liable to be set aside.

4. It was further emphasized that without prejudice to the aforesaid grounds, admittedly the application filed by the plaintiff was beyond period of limitation as such, in absence of application under Section 5 of the Limitation Act, an application for bringing the legal representatives on record, for whatever reasons was not maintainable, moreso, when no prayer has been made for condonation of delay in the application; though it was argued and pleaded by the petitioners, the trial court did not appreciate this matter and in absence of application for condonation of delay, the trial court had no jurisdiction for allowing the application filed by the Bank for brining on record legal representatives. Finally, the petitioners have pleaded that the impugned order is non-est in the eyes of law, unless and until delay is not condoned, for which the condition precedent is to file an application for condonation of delay under the provisions of Limitation Act.

5. While reiterating the grounds taken in the Revision Petition, learned counsel for the revisionists has argued that the contention of the respondents that there was no application for condonation of delay; that the plaintiff was never informed about the death of the deceased defendant No.1 during the proceedings of the suit by the Advocate representing the defendants, as such, the plaintiff had no information about the date of the death of the deceased defendant, also there was no question of filing of an application. She further submitted that the finding o