Shadi Vs. Ram Pal and ors.

- [ a.c. gupta,; o. chinnappa reddy and; r.s. pathak, jj.] - civil procedure code 1908 - order 22, rule 9 - application for substitution of lrs - delay in applying for substitution of lrs on ground of non-communication of the news of death by the surviving respondents -- the suit was dismissed by the trial court but on appeal the appellate court reversed that decision and decreed the suit. the defendant preferred a second appeal to the high court. the high court rejected this application and dismissed the appeal as having abated.a.c. gupta,; o. chinnappa reddy and; r.s. pathak, jj.1. the appellant is the defendant in a suit for perpetual injunction. the suit was dismissed by the trial court but on appeal the appellate court reversed that decision and decreed the suit. the defendant preferred a second appeal to the high court. during the pendency of the second appeal three of the respondents, namely, mangal, leel, mohan lal, died on april 20, 1974, december 8, 1976 and august 15, 1975 respectively. it appears that the fact of death of these respondents was not communicated to the counsel for the appellant. sometime in may 1980 the defendant-appellant made an application for substitution of the legal representatives of the deceased respondents after setting aside abatement of the appeal. the high court rejected this application and dismissed the appeal as having abated. there is no finding that the appellant was guilty of any laches or that he purposely delayed in making the application for substitution. considering the facts of the case we think the high court erred in rejecting the application for substitution. accordingly we allow the appeal, set aside the impugned order and send the case back to the high court for disposing of the appeal in accordance with law after bringing on record the legal representatives of the deceased respondents. there will be no order as to costs.