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Showing contexts for: order xxii in Banwari Lal (D) By Lrs vs Balbir Singh on 25 August, 2015Matching Fragments
(ii). Second appellant-Swaraj also died on 02.12.2008 and an order was passed on 06.08.2009 that the second appeal abated qua the second appellant as no steps were taken to bring on record his legal representatives.
6. Second appellant-Swaraj died on 02.12.2008. CM Nos.7034 of 2009 (under Order XXII Rule 9 CPC) and 7035 of 2009 (under Order XXII Rule 3 CPC) in RSA No.100/2008 were filed to set aside the abatement against appellant No.2 and also to bring on record the legal representatives of the second appellant. Since application for condonation of delay in filing the applications was not filed, those applications were withdrawn with liberty to file a fresh application. Since fresh applications were not filed to bring on record the legal representatives of the second appellant, the second appeal was dismissed qua the second appellant by order dated 06.08.2009. It is clear from the combined reading of Order XXII Rules 3, 4 and 11 CPC that the doctrine of abatement is applicable equally to a suit as well as to an appeal. It is seen from the records that fresh applications viz. 11811/2009 (for condonation of delay), 11812/2009 (under Order XXII Rule 9 CPC) and 11813/2009 (under Order XXII Rule 3 CPC) were filed to set aside the abatement caused due to the death of the second appellant-Swaraj. As noticed earlier, second appeal being RSA No.100/2008 was dismissed for non prosecution on 02.08.2010. By order dated 02.02.2012, the second appeal was restored to file on payment of cost of Rs.5,000/-. The relevant portion of the order reads as under:-
7. But the facts remain that three fresh applications No.11811/2009, 11812/2009 (under Order XXII Rule 9 CPC) and 11813/2009 (under Order XXII Rule 3 CPC) were filed for condonation of delay and to set aside the abatement and to bring on record the legal representatives of appellant No.2-Swaraj. When the second appeal was restored to file, specific order ought to have been passed restoring the above three applications and setting aside the abatement and the legal representatives of the appellant No.2 ought to have been brought on record. Without passing specific order on those three applications, High Court was not right in dismissing the second appeal as abated qua the second appellant.
12. In the result, the impugned order is set aside and this appeal is allowed and the following directions are issued:-
(i). Necessary applications were filed to bring on record the legal representatives of appellant No.2-Swaraj. Since the suit is of the year 1986 and the second appeal is of the year 2008 and in the interest of justice, the applications No. 6342/2008 (for stay), 11811/2009 (for condonation of delay), 11812/2009 (under Order XXII Rule 9 CPC) and 11813/2009 (under Order XXII Rule 3 CPC) are allowed and legal representatives of appellant No.2-Swaraj are ordered to be brought on record.
(ii). CM No.1998/2012 filed under Order 1 Rule 10 CPC is treated as an application under Order XXII Rule 3 CPC. The legal representatives of late Banwari Lal viz., (i) Shakuntala (ii) Gaurav (iii) Rachna and (iv) Manju are ordered to be brought on record and the application is allowed.1
(iii). RSA No.100/2008 on the file of the High Court is ordered to be restored. Memorandum of second appeal be suitably amended and amended memo of appeal shall be filed before the High Court within four weeks.