IMPORTANT POINT
Substitution – A simple prayer for bringing legal representatives on record without specifically praying for setting aside of abatement may in substance be construed as a prayer for setting aside abatement.

JUDGMENT

Notice upon the Opposite Parties have been effected and they have not appeared and in view of that this matter was adjourned on 15.01.2025 with a view to provide one more opportunity to the Opposite parties, and today again, nobody appeared on behalf of the Opposite parties on repeated calls. In view of that, this petition is being heard in absence of the Opposite parties.

2. This petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 09.03.2022 passed by the learned Additional Munsif-X, Giridih in Original Suit No.1423 of 2019, arising out of Partition Suit No.91 of 2017, whereby the petition filed under Order I Rule 10(2) read with Section 151 C.P.C filed by the petitioners has been rejected.

3. Mr. Mukhopadhyay, the learned counsel appearing on behalf of the petitioners submits that the suit was instituted for partition. He further submits that during pendency of the suit Mangori Devi died leaving behind her husband Kalu Mahto and one son Tribhuwan Verma and two daughters namely Usha Devi and Fulmati Devi. He submits that death of the defendant no.32 was not known to the plaintiffs and in view of that, when it has come to his knowledge, a petition was filed for substituting the name of the legal heirs/successors of the defendant no.32 as defendant Nos. 32(a) to 32(d). He submits that the learned court has dismissed the same on the ground of limitation and further it has been pointed out that the petition has not been filed under the correct provision of law. He submits that said order may kindly be set aside.

4. In course of the argument, the rejoinder filed by the defendants to the said amendment has been produced before the Court and from there it transpires that the ground has been taken of not filing the petition in the correct provision of law and the prayer for setting aside the amendment and limitation. Thus, the death of defendant no.32 is accepted in the rejoinder filed by the O.P.no.2 and it has been disclosed that when it has come to the knowledge of the plaintiffs, the petition was filed for substituting the name of the legal heirs/ successors of the defendant no.32 which has been rejected by the learned court only on the ground that correct provision of law as well as limitation has not been explained.

5. A justice oriented approach has to be followed in interpreting the procedure of C.P.C is a well settled law. A reference may be made to the case of Chinnammal v. P. Arumugham reported in (1990) 1 SCC 513 and in paragraph no.17 of the said judgment, it has been held as under:—

“17. It is well to remember that the Code of Civil Procedure is a body of procedural law designed to facilitate justice and it should not be treated as an enactment providing for punishments and penalties. The laws of procedure should be so construed as to render justice wherever reasonably possible. It is in our opinion, not unreasonable to demand restitution from a person who ha purchased the property in court auction being aware of the pending appeal against the decree.”

6. The reason given by the learned trial court is difficult to agree with when an application praying for substitution has been made then even assuming that it does not have an explicit reason for setting aside the abatement and condoning of the delay, such prayer could be read as inherent in the prayer for substitution in the interest of justice. A reference may be made to the case of Mithailal Dalsangar Singh v. Annabai Devram Kini reported in (2003) 10 SCC 691, wherein it has been held that a simple prayer for bringing the legal representative on record without specifically praying for setting aside of an abatement or condonation of delay may in substance be construed as a prayer for setting aside the abatement. Paragraph Nos.8, 9 and 10 of the said judgment are quoted 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 cons