ORDER Yashoda Nandan, J.
1. This is a defendant's revision against the order of the learned 1st Additional District Judge, Allahabad ordering for her appeal to be abated as a whole.
2. The material facts giving rise to this revision are that the applicant filed a First Appeal in this Court against the plaintiffs including one Banwari Lal who figured as a respondent. During the pendency of the appeal in this Court, Banwari Lal died. On the 9th of July, 1962 application No. 35A was moved by the applicant mentioning that Banwari Lal had died in the first week of April, 1962 and praying for substitution of his widow in his place. The application was supported by an affidavit. Notice was served on the respondents in the appeal and objection was filed on the 15th of July, 1963 in the form of an affidavit stating that the appeal had abated since Banwari Lal had died on the 5th of February, 1962. Along with the affidavit, a certificate of the Pradhan of the Gaon Sabha concerned was also filed showing that Banwari Lal had died on the 5th of February, 1962 and not in the first week of April, 1962 as claimed by the applicant. It was on the 9th of July, 1962 that this Court had re-opened after the summer vacations. By an order dated 6-3-1962, B. D. Gupta, J. dismissed the application dated 9th July 1962 as having been made beyond time. The learned Judge ordered that the appeal had abated against respondent No. 1 in the appeal. It was directed that the order of abatement will be brought to the notice of the Bench hearing the appeal. Subsequently B. D. Gupta, J. recalled his order dated 6th March, 1964 on the 17th of April, 1964. On the 18th of March. 1964, the applicant, who was appellant in the appeal, filed application 31-A praying for setting aside the abatement of the appeal. This application was also accompanied by an affidavit. It does not appear from the record that any counter-affidavit was filed. The appeal was subsequently transferred to the court of the learned 1st Additional District Judge, Allahabad as a result of coming into force of the U. P. Civil Laws (Amendment) Act, 1970. When the appeal came up for hearing before the learned 1st Additional District Judge, Allahabad, he took the view that the appellant had no excuse whatsoever for not filing an application for setting aside the automatic abatement of the appeal against Banwari Lal after the 15th of July, 1963 when a counter-affidavit was filed along with a certificate showing that Banwari Lal had died on the 5th of February, 1962. The learned Judge further held that limitation had expired long back and no application under Section 5 Limitation Act had been made for condoning the delay. In this view of the matter, the learned Judge held that the application dated 18th of March, 1964 for setting aside the abatement could not be allowed.
3. It appears that on behalf of the applicant reliance was placed on the decision of this Court in Lachmi Narain v. Muhammad Yusuf, (AIR 1920 All 284) for the contention that the application for substitution dated 9th July, 1962 should be treated as an application for setting aside the abatement. The reference of that case seems to have been wrongly cited in the judgment of the court below. The decision was distinguished by the learned Additional District Judge on the ground that the application dated 9th July, 1962 made by the applicant gave no indication that it should be treated as an application for setting aside abatement. A further reason given by the 1st Additional District Judge for distinguishing the decision of this Court in Lachmi Narain v. Mohd. Yusuf (supra) is that the fact that the applicant had no intention to treat the application dated the 9th July, 1952 as an application for setting aside the abatement was made manifest by the fact that she herself had applied on 18th of March, 1964 by means of an application for setting aside the abatement. The learned 1st Additional District Judge held that the appeal should consequently be treated as having abated against respondent No. 1. In view of the fact that if the appeal were allowed to continue against the remaining respondents the result would be inconsistent decree against different sets of respondents, the appeal was declared to have abated in its entirety.
4. Learned counsel appearing on behalf of the applicant has contended that the application made on the 9th of July, 1962 for substituting the heirs and legal representatives of respondent Banwari Lal implied a prayer for setting aside the abatement and permitting the proceedings to continue against the heirs and legal representatives sought to be brought on the record. In support of his contention, the learned counsel again placed reliance on the decision in Lachmi Narain v. Muhammad Yusuf, (AIR 1920 All 284) (supra). He urged that the court below had without any legal justification distinguished that decision which was binding on him. He further placed reliance on the decision of the Orissa High Court in Babaii Padhan v Mst. Gurubara Padhani, (AIR 1962 Ori 94). The decision of this Court in Lachmi Narain v. Muhammad Yusuf, (AIR 1920 All 284) (supra) and another decision of the Lahore High Court in Kirpa Ram v. Bhagat Chand (AIR 1928 Lah 746) were followed in this decision with approval by the Orissa High Court. I agree with the contention that the court below wrongly distinguished the decision of this Court in Lachmi Narain v. Muhammad Yusuf, (AIR 1920 All 284) (supra) and held that the application D/- 9-7-1962 could be treated as an application for setting aside the abatement and for bringing on record the heirs and legal representatives of the deceased respondent Banwari Lal.
5. Learned counsel appearing on behalf of the applicant further contended that merely because the application dated 18th March, 1964 praying for setting aside the abatement did not contain a formal prayer for condoning the delay did not bear the court from treating it as an application under Section 5, Limitation Act and from taking into account the relevant material on record for the purpose of deciding as to whether the applicant had sufficient cause for condonation of delay in making the application for substitution and for applying for setting aside the abatement of the appeal. In support of the contention that a formal application under Section 5 of the Limitation Act is not necessary to enable the court to decide whether delay deserves to be condoned or not learned counsel appearing on behalf of the applicant has relied on the decision of the Punjab High Court in Firm Kaura Mal Bishan Das v. Firm Mathra Dass Atma Ram, Ahmedabad, (AIR 1959 Puni 646) wherein it was held (at p. 646)--
"Merely because there was no written application filed by the appellant is hardly a sufficient ground for refusing him the relief, if he is otherwise entitled to it. Procedure is meant for advancing and not for obstructing the cause of justice; and if the entire material is on the record, it cannot promote the ends of justice, if that material is ignored and the relief refused to the appellant, merely because he had not claimed it by means of a formal application in writing or that a formal affidavit was not filed. The language of Section 5 also does not provide that an application in writing must be filed before relief under the said provision can be granted."
In the above-mentioned decision, reliance was placed on the Division Bench decision of this Court in Mt. Kulsoomun Nissa v. Noor Mohammad (AIR 1936 All 666). The submission made is supported by two decisions cited above and must consequently prevail.
6. For the reasons given, this revision is allowed and the order of the court below is set aside. Accepting the position that Banwari Lal had died on the 5th of February, 1962 the application dated 9th July, 1962 having been made within 150 days excluding the period of the summer vacations, the question of condoning the delay in making the application for setting aside the abatement will not arise. The case will now go back to the appropriate court for deciding as to whether the material on record justifies condonation of delay in making the application for substitution of the heirs and legal representatives of the deceased Banwari Lal. In the circumstances of the case, parties shall bear their own costs. The record of the case will be sent dpwn to the appropriate court at an early date.