Pulakesh Dutta vs Rasaraj Dey and Others

M.L. Singhal, J.—Civil Revision preferred u/s 115, CPC arising out of the Court''s order dated 3-3-1998 passed by the District Judge, North Tripura, Kailashahar in case No. TA 2 of 1997 Shri Pulakesh Datta v. Smt. Baranga Bala Datta, rejecting the appellant''s application filed under Order 22, Rule 11 read with Rule 4-A, C.P.C. and read with Section 115, C.P.C.

Heard Mr. D. K. Biswas, learned counsel for the petitioner and Mr. R. B. Sinha, learned counsel for the respondent.

The respondent Smt. Baranga Bala Dutta in Civil Appeal before the learned District Judge, died during the pendency of the appeal on 7th April, ''97. The appellant Shri Pulakesh Dutta filed petition under Order 22, Rule 11 read with Rule 4A, C.P.C. read with Section 115, C.P.C. for substitution of the heirs of the deceased respondent. The learned District Judge has rejected the application observing that as the substitution application has not been filed within limitation period, the appeal has abated and no application for setting aside the abatement has been filed by the appellant.

Learned Appellate Court has rejected the substitution application with the observation that after the abatement of the appeal the appellant should have filed application for setting aside the abatement, the appellant also filed application for substitution within the limitation period. The provisions of the Code are to advance the cause of Justice, a party to the litigation should not be allowed to suffer on account of technicalities of the case. In the interest of justice it appears necessary that the present application of the appellant filed under Order 22, Rule 11 . Rule 4A read with Section 115, C.P.C. should also be treated as the application for setting aside the abatement under Order 22, Rule 9(2) of the Code of Civil Procedure.

In the result, the revision succeeds and is hereby allowed. The order dated 3-3-1998 under revision is hereby set aside. The appellate Court shall decide the substitution matter between the parties in accordance with the directions given above and according to the law.