List has been revised.
Sri Prashant Jaiswal, learned counsel for the appellant and Ms. Pratima Srivastava, learned counsel for the respondent no.4 are present.
Learned counsel for the respondents submits that the sole appellant-Samai Deen died on 30.07.2015 and application for substitution of his LRs has not been filed till date.
Learned counsel for the appellant submits that the sole appellant died, but he has not received instructions on behalf of the LRs of the appellant, therefore, no application for substitution has been filed till date.
On perusal of the provision of order XXII Rule 3(2) read with Order 22 Rule 11 of the Code of Civil Procedure, 1908, it is manifestly clear that it is incumbent to seek substitution of legal representatives/ legal heirs of the deceased appellant, if the right to sue survives. The application for substitution of the legal representatives of the deceased appellant has to be filed within the prescribed period of limitation. In case, no such application is filed, the appeal will abate.
However, sub-rule-2 of Rule 9 of Order XXII of C.P.C. enables the appellant/plaintiff to apply for setting aside abatement within the prescribed period of limitation. In case the application for substitution and for setting aside the abatement is not filed within the prescribed period of limitation, the abatement takes place on it own force and no specific order for abatement is necessary. In this regard reliance can be placed on a decision of the Hon'ble Supreme Court in the case of "Madan Naik (dead by LR's) and others Vs. Hansubala Devi and others", AIR 1983 Supreme Court 676. The Hon'ble Supreme Court, in para 5 observed as under:-
"Order 22 Rule 11 of the Civil P.C. read with Order 22, Rule 4 makes it obligatory to seek substitution of the heirs and legal representatives of deceased respondent if the right to sue survives. Such substitution has to be sought within the time prescribed by law of limitation. If no such substitution is sought, the appeal will abate. Sub-rule (2) of R Rule 9, Order 22 enables the party who is under an obligation to seek substitution to apply for an order to set aside the abatement and if it is proved that he was prevented by any sufficient cause from continuing the suit which would include an appeal, the Court shall set aside the abatement. Now where an application for setting aside an abatement is made, but the Court having not been satisfied that the party seeking setting aside of abatement was prevented by sufficient cause from continuing the appeal, the Court may decline to set aside the abatement. Then the net result would be that the appeal would stand disposed of as having abated. It may be mentioned that no specified order for abatement of a proceeding under one or the other provision of Order 22 is envisaged, the abatement takes place on its own force by passage of time. In fact, a specific order is necessary under Order 22, Rule 9 C.P.C. for setting aside the abatement."
In the present case as stated by learned counsel for the respondent, the sole appellant-Samai Deen died on 30.07.2015 and an application for dismissal of the appeal bearing C.M. Application No.86677 of 2019 along with an affidavit of Smt. Mithlesh Singh has been filed.
It is not disputed that the sole appellant-Samai Deen died on 30.07.2015, but no application for substitution of his LRs has been filed. Thus, the appeal is liable to be dismissed as abated.
Accordingly, the appeal is dismissed as having been abated.
(Ved Prakash Vaish, J.) Order Date :- 31.7.2019 Goswami