HIGH COURT OF JUDICATURE FOR RAJASTHAN JODHPUR S.B. Civil First Appeal No. 747/2024 Abbas Khan & Anr.

----Appellants Versus Lakhmir & Ors.

----Respondents For Appellant(s) : Mr. S.P. Arora Mr. Indu Shekhar Pareek For Respondent(s) : Mr. RJ Punia HON'BLE MR. JUSTICE KULDEEP MATHUR

Order

10/11/2025

1. The present first appeal has come on the applications filed under Section 5 of the Limitation Act in filing the application under Order XXII Rule 4(5) and Order XXII Rule 10(A) of CPC as well as application filed under Order XXII Rule 3 for bringing legal representatives of deceased- appellant No.1 Abbas Khan on record. An application (I.A. No.04/2025) under Order XXII Rule

4(5)(a)(b) CPC has also been filed.

2. Learned counsel for the respondent (defendants) Shri R.J Punia submitted that the defendants- Kamia and Mehra had died during pendency of the civil suit. However, their legal representatives were not brought on record. He submitted that the present applications filed on behalf of the appellant for bringing LR’s of defendants Kamia and Mehra under Order XXII Rule 4 and Order XXII Rule 10(A) of the CPC is not maintainable. The same therefore deserves to be rejected as not maintainable.

3. Per contra, learned counsel for the appellant submitted that error of filing the present appeal against Kamia and Mehra has occurred as the cause title was not amended in the trial Court and the impugned judgment and decree has been drawn in the name of Kamia and Mehra. Learned counsel submitted that as soon as the factum with regard to death of the defendants Kamia and Mehra came to the notice of the appellants, they have filed application for bringing their LR’s on record along with an application under Section 5 of the Limitation Act for condonation of delay.

4. Heard.

5. It is not in dispute before this Court that the fact with regard to the death of defendants Kamia and Mehra was not brought to the notice of the learned trial Court. Consequently, the impugned judgment and decree has been drawn incorporating their names. Section 153 CPC empowers the Court to allow suit to be removed by an amendment. In case of appeal, the amendment can be permitted even beyond limitation if the appellant brings his case within the meaning of Section 5 Limitation Act. In the present case, this Court finds that the appellant have shown a sufficient cause for not earlier bringing on record the LR’s of defendants Kamia and Mehra who had already passed away on the date of filing of the appeal. The delay in filing applications is, therefore, condoned. The application filed under Order XXII Rule 4 (5) read with Order XXII Rule 10 A CPC are ordered to be treated as an application under Section 153 CPC. The appellant is permitted to add the legal representatives of the deceased- defendants as respondents- defendants.

6. The application (I.A. No.05/2025) filed under Order XXII Rule 3 CPC for bringing the legal representatives of deceased appellant – Abbas Khan is allowed. The order of abetment of appeal is set aside.

7. The amended cause titled annexed with the application is ordered to be taken on record. The applications Nos.01/2025, 02/2025, 03/2025, 04/2025 and 05/2025 stands disposed of.

8. List the matter for admission/ orders after two weeks.

(KULDEEP MATHUR),J

73-divya/-