Advocates:
['Manoj Kumar Singh', '', 'Om Prakash Upadhyay', 'Abhash', '', 'Pradhan Murli Manohar Pd', 'Raju Kumar']

IN THE HIGH COURT OF JUDICATURE AT PATNA

CIVIL MISCELLANEOUS JURISDICTION No.1188 of 2018

======================================================

1.

Harshan Rai @ Harasan Ray and Ors Son of Late Sarju Rai @ Saraju Ray

2.

Lallu Rai, Son of Late Kantu Rai.

3.

Vijaibahadur Rai, Son of Arjun Rai, All Resident of Village-Salempur, P.S.-

Chainpur, Distirct-Kaimur Bhabua.

... ... Petitioner/s

Versus

Abhishek Kumar Agarwal Son of Late Kanti Prasad Agarwal, All Resident of

Village-Salempur, P.S.-Chainpur, Distirct-Kaimur Bhabua.

... ... Respondent/s

======================================================

Appearance :

For the Petitioner/s

:

Mr. Manoj Kumar Singh, Adv.

For the Respondent/s

:

Mr. Abhash, Adv.

======================================================

CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA

ORAL ORDER

4

22-11-2022

Heard Mr. Om Prakash Upadhyay, learned counsel for

the petitioners and learned counsel for the respondents.

2. The petitioners are aggrieved by an order dated

26.02.2018 passed in filed by Title Suit No. 97/2007 by which

the learned trial court has rejected the petition filed by

petitioners/plaintiff for substitution of Defendant No. 1 in the

plaint who died on 25.12.2013.

3. Learned counsel for the petitioners submits that the

petitioners are the plaintiff in the Title Suit No. 97 of 2007

which was filed for declaration of title upon the suit land.

4. Defendant No. 1 died on 25.12.2013. The case of

the petitioner is that the petitioners were not knowing about the

death of Defendant No. 1 and as soon as they got the knowledge

Patna High Court C.Misc. No.1188 of 2018(4) dt.22-11-2022

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about the death, they filed a petition under Order 22 Rule 4 of

the C.P.C. for deletion of his name and for substitution of his

legal heirs on 03.08 filed by.2015. A petition for condonation of

delay was also filed by the petitioners stating therein that the

petitioners had no knowledge about the death of Defendant No.

1 and the moment they got the knowledge, they filed the

substitution petition on 03.08.2015.

5. Learned counsel for the petitioner relied upon the

judgment of Hon’ble Supreme Court reported in Mithailal

Dalsangar Singh and Ors. vs. Annabai Devram Kini and Ors.

2003 (10) SCC 691.

6. On the other hand, learned counsel for the

respondents submits that under Order 22 Rule 4 CPC, the

petitioner was required to file a petition for setting aside

abatement also and or a prayer could have been made by the

petitioner in the substitution petition in this regard. No such

petition or prayer has been made in the petition filed by the

petitioner. As such, the learned trial court has rightly rejected

the petition for substitution of Defendant No. 1. He further

submits that provision of Order 22 Rule 4 CPC is mandatory in

nature.

7. I have heard learned counsel for the parties, gone

Patna High Court C.Misc. No.1188 of 2018(4) dt.22-11-2022

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through the impugned order and material on records. From

Annexure- 2, it appears that the petitioner has filed a petition for

substitution stating therein that after coming to know about the

death of the Defendant No. 1/ Kanti Prasad Agarwal, the present

petition for substitution of his legal heir has been filed with a

prayer that in the place of Defendant No. 1, his legal heir

Abhishek Kumar Agarwal be substituted as defendant. A

petition for condonation of delay has also been filed along with

the aforesaid petition for substitution.

8. Hon’ble Supreme Court, in the case of Mithailal

Dalsangar Singh (supra) has held that 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.

9. In view of the judgment of the Supreme Court and

the fact that the petitioner filed a petition for substitution of the

legal heir of Defendant No. 1 along with a petition for

con