JUDGMENT
Arun Madan, J.
1. This Revision has been preferred to this Court against the order dated 27.1.1994 passed by the learned Additional District Judge No. 7, Jaipur City, Jaipur, in CMA No. 163 of 1991, by which the appellate court rejected petitioner’s application under Order XXII Rule 9 of the CPC read with Section 5 of the Limitation Act.
2. The facts giving rise to the Revision Petition, briefly stated are that a suit for mandatary injunction was filed against the petitioner-defendant by the plaintiff-respondent, wherein the plaintiff had sought a direction from the trial court against the petitioner to restrain him from constructing a room over the first floor of the disputed property situated at Jaipur.
3. The trial court granted the relief of interim injunction in favour of the respondent-plaintiff. Aggrieved by the said order, the petitioner preferred an appeal before the learned Additional District Judge No. 7, Jaipur City, Jaipur, who vide the impugned order dated 27.1.1994 rejected petitioner’s aforesaid application on the ground that the application for substitution of legal representatives of the deceased respondent was not filed within the limitation period of 90 days and there was a delay of 153 days as on the day of presentation of the said application. Perusal of the impugned order reveals that the petitioner became aware of the death of the sole respondent on 11.5.1993 while the respondent died on 20.9.1992. That delay was sought to be explained by the petitioner on the ground that due to the illness of the petitioner and his old age, the application under Order XXII Rule 9 CPC read with Section 5 of the Limitation Act, could not be filed within time. This fact has also been highlighted by the petitioner in ground (viii) of the memo of Revision wherein the petitioner has contended as follows:
That the learned court below has only taken into consideration that the counsel for the petitioner was aware of the fact of the death of respondent, but he did not consider this fact that when the petitioner himself was ill and was not able to come to court, then how the counsel could have filed the application for substitution in bringing the representation on record.
4. During the course of hearing, it has been brought to my notice that during the pendency of proceedings before the trial court, respondent-plaintiff died on 20.9.92 and the application under Order XXII Rule 9 CPC read with Section 5 of the Limitation Act, for substitution of legal representatives of the deceased, was filed by the petitioner, as referred to above, and the trial court after giving due hearing to both the parties, allowed the said application, whereby the legal representatives of the deceased respondent, who are party to this Revision, were brought on the record. In this regard I am of the considered opinion that once the trial court having brought the legal representatives of the deceased respondent on the record, it was not open for the appellate court to have taken a contrary view of the matter since technically the appeal preferred by the petitioner against the interim order could not abate for this reason of delay in substituting the legal representatives of the deceased respondent on the record. 1 am further of the opinion that the legal representatives having thus been brought on the record, would automatically and ipso facto continue to remain on the record and the appellate court should have taken this vital fact into consideration that the suit could not have abated for the mere reason of their non-impleadment before the trial court.
5. Shri Bhandari, learned Counsel for the respondent, while controverting the contentions advanced by the learned Counsel for the petitioner, has vehementally contended at the Bar that in view of the inordinate delay in substituting the legal representatives of the deceased respondent on the record, the order passed by the trial court allowing their substitution, is contrary to law and is also not sustainable in view of Order XXII Rule 11 CPC, which states as under:
In the application of this Order to appeals, so far as may be, the word “plaintiff” shall be held to include an appellant, the word “defendant” a respondent, and the word “suit” an appeal.
6. In support of his contention, the learned Counsel Shri Bhandari placed reliance on the judgment of the Apex Court in the matter of Mahant Niranjan Dass v. Shiromani Gurudwara Prabandhak Committee, Amritsar , and the decision of this Court in the matter of State v. Prem Raj 1992 (1) WLC 516. However; with due respect, I do not subscribe by the view taken by the Apex Court and this Court in the said decisions.
7. I have heard the learned Counsel for the parties at length and have also examined their rival claims and contentions, as well as the legal position on the subject. I am of the considered opinion that the order passed by the appellate court dated 27.1.1994 is not sustainable and deserves to be quashed and set aside. I am fortified in my observations from the judgment of Calcutta High Court in the matter of Probodh Kr. Bajpayee v. Mohit Kr. Banerjee , and the judgment of Apex Court in the matter of Shadi v. Ram Pal and Ors. . The Calcutta High Court in the above referred decision, while dealing with an identical matter, held as under:
Lastly while it is true that the court does not interfere on the ground of a mere illegality or erroneous decision (see Manindra Land & Building Corpn.’s case and Pandurang’s case AIR 1960 SC 153) it may be noted that in the instant case there was a failure on the part of the court to consider the records and the relevant facts. It was not merely an erroneous decision against which the petitioner has come to this Court. Mr. Mukherjee seems to be on strong ground when he urges that the lower court acted with material irregularity in not taking into consideration some very relevant features of the case.
8. Similarly the Apex Court in the Shodi’s case (supra), held that delay in applying for substitution of legal representatives on the ground of non-communication of the news of death by the surviving respondents, deserve to be condoned by the trial court. It was further held by the Apex Court that in absence of any positive finding with regard to the laches or intentional delay, the High Court was not jusfitied in rejecting the application and dismissing the appeal as having abated.
9. As a result of the above discussion, I find force in the contentions advanced by the learned Counsel for the petitioner and the petitioner deserves to succeed. Consequently, the Revision Petition is allowed. The appellate court is directed to give a fresh hearing to both the parties and decide the Appeal in accordance with law. The parties should appear before the learned appellate court on 9.7.1996. Parties are left to bear their own costs.