# Smt. Ritu Jutshi & Ors v. Smt. Rukmini Kaul

- **Citation:** (2021) 8 ILRA 22
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-17
- **Case number:** F.A.F.O. No. 903 of 2012
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-ritu-jutshi-ors-v-smt-rukmini-kaul-47192
- **Pages:** 5

## Headnote

(A) Civil Law - Code of Civil Procedure
,1908 - Section 104 read with Order 43,
Rule 1 (k) read with Section 141 - The
Limitation Act,1963 - Section 14 ejusdem
generis - no appeal is provided against an
Order under Order XXII Rule 3 and 5 of
the Code either under Section 104 or
Order 43 Rule 1 of the Code - once the suit
has abated or is dismissed, any person
such as the appellants claiming to be a
legal representative
of
the
deceased
would be required to apply for setting
aside the abatement or dismissal of the
suit under Order XXII Rule 9 (2) of the
Code - if such an application is dismissed,
the order dismissing such an application
would be open to challenge in an appeal
under Order 43, Rule 1(k) of the Code.
(Para - 16,17)
Application for substitution filed under Order
XXII Rule 3 - without any application being filed
under Order XXII Rule 9 for setting aside
abatement - rejected - ground - it was
unaccompanied
by
any
application
for
condonation of delay and application for setting
aside abatement - present appeal under Order
43, Rule 1 (k) - preliminary objection -
maintainability of the appeal.(Para -2,4,6,8)

HELD:- It is clear that once the suit has abated
or it is dismissed or in the present case the
appeal, it was open to the person claiming to be
legal representative of the deceased to apply for
setting aside of abatement or dismissal of the
suit in terms of Order XXII Rule 9(2) of the
Code.There was no application either for setting
aside of abatement or dismissal of the suit as
required to be filed under Order XXII Rule 9(2)
of the Code. Respondent has rightly objected to
the maintainability of the appeal since it is not
maintainable from an order rejecting an
application under Order XXII Rule 3 of the
Code.(Para - 18,19)

Appeal dismissed. (E-6)

List of Cases cited:-

## Text

22 INDIAN LAW REPORTS ALLAHABAD SERIES
lower Appellate Court on 6th September,
2021.

24. Let this order be communicated to
the District Judge, Kaushambi by the
Registrar (Compliance).
----------
(2021)08ILR A22
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.08.2021

BEFORE

THE HON'BLE MANISH MATHUR, J.

F.A.F.O. No. 903 of 2012

Smt. Ritu Jutshi & Ors. ...Appellants
Versus
Smt. Rukmini Kaul ...Respondent

Counsel for the Appellants:
Rajeiu Kumar Tripathi

Counsel for the Respondent:
Aftab Ahmad, Akhil Kumar, Malay Shukla,
Mohammad Aslam Khan, Mohd. Aslam
Khan, Mohd. Shafiq, Mohiuddin Khan,
Shaquiel Ahmad

(A) Civil Law - Code of Civil Procedure
,1908 - Section 104 read with Order 43,
Rule 1 (k) read with Section 141 - The
Limitation Act,1963 - Section 14 ejusdem
generis - no appeal is provided against an
Order under Order XXII Rule 3 and 5 of
the Code either under Section 104 or
Order 43 Rule 1 of the Code - once the suit
has abated or is dismissed, any person
such as the appellants claiming to be a
legal representative
of
the
deceased
would be required to apply for setting
aside the abatement or dismissal of the
suit under Order XXII Rule 9 (2) of the
Code - if such an application is dismissed,
the order dismissing such an application
would be open to challenge in an appeal
under Order 43, Rule 1(k) of the Code.
(Para - 16,17)
Application for substitution filed under Order
XXII Rule 3 - without any application being filed
under Order XXII Rule 9 for setting aside
abatement - rejected - ground - it was
unaccompanied
by
any
application
for
condonation of delay and application for setting
aside abatement - present appeal under Order
43, Rule 1 (k) - preliminary objection -
maintainability of the appeal.(Para -2,4,6,8)

HELD:- It is clear that once the suit has abated
or it is dismissed or in the present case the
appeal, it was open to the person claiming to be
legal representative of the deceased to apply for
setting aside of abatement or dismissal of the
suit in terms of Order XXII Rule 9(2) of the
Code.There was no application either for setting
aside of abatement or dismissal of the suit as
required to be filed under Order XXII Rule 9(2)
of the Code. Respondent has rightly objected to
the maintainability of the appeal since it is not
maintainable from an order rejecting an
application under Order XXII Rule 3 of the
Code.(Para - 18,19)

Appeal dismissed. (E-6)

List of Cases cited:-

1. Mangluram Dewangan Vs Surendra Singh &
ors. , (2011) 12 SCC 773

2. Mst. Fakhrun & ors. Vs Hafizulla alias Kalloo &
ors. , 1999 (17) LCD 906

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. Rajeiu Kumar Tripathi,
learned counsel for appellants and Mr.
Shaquiel Ahmad, learned counsel for
respondent.

2. First Appeal from Order under
Section 104 read with Order 43, Rule 1 (k)
read with Section 141 of the Code of Civil
Procedure, 1908 (hereinafter referred to as
the Code) has been filed against order dated
31.07.2012 passed in Regular Civil Appeal
No.53 of 1995. By means of the impugned
order, the application for substitution filed
8 All. Smt. Ritu Jutshi & Ors. Vs. Smt. Rukmini Kaul
23
under Order XXII Rule 3 has been rejected
primarily on the ground that it was
unaccompanied by any application for
condonation of delay and application for
setting aside abatement.

3. Learned counsel appearing on
behalf of the respondent has raised a
preliminary
objection
regarding
maintainability of the appeal in view of the
fact that an appeal under Order 43, Rule 1
(k) can be filed only against an order under
Rule 9 of Order XXII refusing to set aside
the abatement or dismissal of a suit. It has
been submitted that since in the present
case, the order under challenge has merely
rejected the application filed under Order
XXII Rule 3 of the Code, therefore, there is
no refusal to set aside abatement in terms
of Rule 9 of Order XXII and the present
appeal, therefore, is not maintainable.
Learned counsel for respondent has relied
upon the decision of Hon'ble the Supreme
Court
in
Mangluram Dewangan v.
Surendra Singh and others reported in
(2011) 12 SCC 773.

4. With regard to the preliminary
objection raised by learned counsel for
respondent, learned counsel for appellants
has drawn attention to the record of appeal
with the submission that the application for
substitution filed under Order XXII Rule 3
was duly accompanied by an application
seeking condonation of delay and was in
fact on record as Paper No.C-62. It is
submitted that aforesaid application was
duly supported by an affidavit and,
therefore, the lower appellate court has
recorded
a
wrong
finding
that
the
application
for
substitution
was
unaccompanied by any application seeking
condonation of delay. It has been further
submitted that the rejection of application
filed under Order XXII Rule 3 of the Code
would in fact have the consequence of
abating the proceedings and would as such
amount to dismissal of appeal due to which
the present appeal would be maintainable
in terms of Order 43 Rule 1 (k). It has also
been submitted that an application for
condonation
of
delay
and
seeking
substitution would have inherent relief of
setting
aside
abatement
without
any
specific application being made particularly
in terms of Articles 120 and 121 of the
Limitation Act. Learned counsel has relied
upon a decision of Hon'ble Single Judge in
Mst. Fakhrun and others v. Hafizulla
alias Kalloo and others reported in 1999
(17)
LCD
906
to
substantiate
his
submissions.

5. Learned counsel has also submitted
that the lower appellate court has also
committed an error in dismissing the appeal
as a whole without considering the fact that
an application for substitution of appellant
no.1 on record as Paper No. A-55/1 was
already pending consideration although the
same is not under challenge.

6. Upon consideration of material on
record and submissions advanced by
learned counsel for the parties, it is
apparent that Application A-59 was filed
by applicant Shyam Sunder Jutshi for his
substitution in place of appellant no.3. The
application was filed by the said applicant
claiming himself to be the legal heir of
deceased appellant no.3. Objections were
filed against the application which were
taken on record as Paper No.C-65. The
impugned order dated 31.07.2012 has
indicated that no formal prayer for
condonation of delay has been filed nor any
formal prayer for setting aside of abatement
has
been
made
which
has
natural
consequence as to non-bringing of legal
heirs of the deceased party on record in
24 INDIAN LAW REPORTS ALLAHABAD SERIES
time. In pursuance of aforesaid, the
application A-59 was rejected as having not
been filed within time and not containing a
prayer for setting aside abatement due to
which the appeal as a whole was abated,
leading to filing of the present appeal.

7. A perusal of the provisions under
Order 43, Rule 1 (k) indicates that an
appeal under the said provision can be filed
against an order under rule 9 of order XXII
refusing to set aside the abatement or
dismissal of a suit.

8. In the present case, it is apparent
and has been admitted that the application
for substitution was filed under Order XXII
Rule 3 without any application being filed
under Order XXII Rule 9 for setting aside
abatement although it is also apparent from
the
record
that
an
application
for
condonation
of
delay
in
filing
the
substitution application was on record and
was apparently not seen while passing the
impugned order. Nonetheless, it is admitted
that there was no separate application filed
for setting aside abatement.

9. Section 104 read with Order 43
Rule 1 of the Code in fact does not provide
for any appeal being filed against rejection
of an application under Order XXII Rule 3.
Learned counsel for appellants has placed
reliance on the judgment passed by this
Court in Mst. Fakhrun (supra) with the
submission
that
the
application
for
substitution can be treated as an application
for setting aside abatement.

10. As is evident from the aforesaid
decision in Mst. Fakhrun (supra), a
learned Single Judge of this Court has held
that an application for substitution of heirs
of deceased appellant or respondent is also
to be treated as an application for setting
aside abatement and an order rejecting the
said application amounts to an order
refusing to set aside abatement.

11. However, from a perusal of
paragraph 11 of said judgment, it is
apparent that the same was held in terms of
the question of limitation required with
regard
to
filing
of
applications
for
substitution, condonation of delay and
setting aside abatement. After examining
the provisions of Articles 120 and 121 of
the Limitation Act, it was held that an
application for substitution with a prayer to
set aside abatement may be made within a
period of 150 days from the date of death
of the plaintiff, defendant, appellant or the
respondent as the case may be.

12. From aforesaid paragraph of the
said judgment, it is apparent that the
learned Single Judge has held that such a
single application for substitution of legal
heirs of the deceased can be treated to be an
application if it is made within a period of
150 days from the date of death and the
judgment itself indicates that even then in
the application for substitution, a composite
prayer to set aside abatement is also
required. It is, thus, clear that prayer for
setting aside abatement is required to be
made whether by means of a separate
application or even in the application filed
for substitution. In the present case, from a
perusal
of
the
application
filed
by
appellants, it is evident that no prayer
whatsoever has been made for setting aside
of abatement. As such, the aforesaid
judgment does not help the case of
appellants.

13. Learned counsel for appellants has
also submitted that even under Order 43
Rule 1(k), it has been stated that the appeal
would be maintainable from an order under
8 All. Smt. Ritu Jutshi & Ors. Vs. Smt. Rukmini Kaul
25
rule 9 of order XXII refusing to set aside
the abatement or dismissal of a suit. It has,
thus, been submitted that the effect of the
impugned order rejecting the substitution
application is that the suit/appeal itself has
been
dismissed
as
indicated
in
the
impugned order itself and, therefore, it is
submitted that the appeal would be
maintainable.

14. With regard to the said
submission, it is apparent that the words 'or
dismissal of a suit' cannot be seen in
isolation and have to be ejusdem generis to
the provisions indicated prior thereto. Any
other interpretation of the said wordings
would amount to doing violence to the
provisions of the Code. It is clear from a
reading of Order 43, Rule 1 (k) that the
wordings 'or dismissal of a suit' have to be
read in conjunction with the first part of the
provisions which provides for appeal to be
maintainable against an order made under
rule 9 of order XXII refusing to set aside
the abatement. Accepting the submission of
learned counsel for appellants would have
strange consequences in case the wordings
'or dismissal of a suit' are to be treated as a
separate portion without any relation to the
preceding wordings. If such a submission is
accepted, it would amount to an appeal
being maintainable under Order 43, Rule 1
(k) even in case a suit is dismissed on
merits.
In
that
case,
therefore,
the
provisions of Section 96 of the Code or
even Section 100 of the Code would be
redundant. Such an interpretation cannot be
provided in the present case.

15. In the present case, it is also
apparent that without any specific prayer
for setting aside abatement either in the
substitution application or even by means
of a separate application, such a relief
cannot be read into the application. As
such, it is clear that the application would
remain an application under Order XXII
Rule 3 of the Code and would not take on
the garb of an application for setting aside
abatement under Order XXII Rule 9 of the
Code. Keeping this perspective in mind, it
would thus be apparent that in the present
case, only an application for substitution
under Order XXII Rule 3 has been rejected
and the scope of such an application cannot
be expanded to consider it as an application
under Order XXII Rule 9.

16. Hon'ble the Supreme Court in
Mangluram Dewangan(supra) has clearly
held that no appeal is provided against an
Order under Order XXII Rule 3 and 5 of
the Code either under Section 104 or Order
43 Rule 1 of the Code. In paragraph 10 (f)
& (g) of the report, it has been held as
follows:-

"10.A combined reading of the
several provisions of Order 22 of the Code
makes the following position clear:

(a) .....

(b) .....

(c) .....

(d) .....

(e) .....

(f) Where a suit abates or where
the suit is dismissed, any person claiming
to be the legal representative of the
deceased plaintiff may apply for setting
aside the abatement or dismissal of the suit
under Order 22 Rule 9(2) of the Code. If
sufficient cause is shown, the court will set
aside the abatement or dismissal. If
however such application is dismissed, the
order dismissing such an application is
open to challenge in an appeal under
Order 43 Rule 1(k) of the Code.

(g) A person claiming to be the
legal representative cannot make an
application under Rule 9(2) of Order 22 for
26 INDIAN LAW REPORTS ALLAHABAD SERIES
setting aside the abatement or dismissal, if
he had already applied under Order 22
Rule 3 for being brought on record within
time
and
his
application had
been
dismissed after an enquiry under Rule 5 of
Order 22, on the ground that he is not the
legal representative."

17. Upon applicability of the
aforesaid judgment in the present facts and
circumstances, it is clear that once the suit
has abated or is dismissed, any person such
as the appellants claiming to be a legal
representative of the deceased would be
required to apply for setting aside the
abatement or dismissal of the suit under
Order XXII Rule 9 (2) of the Code.
However, if such an application is
dismissed, the order dismissing such an
application would be open to challenge in
an appeal under Order 43, Rule 1(k) of the
Code.

18. From aforesaid, it is clear that
once the suit has abated or it is dismissed or
in the present case the appeal, it was open
to the person claiming to be legal
representative of the deceased to apply for
setting aside of abatement or dismissal of
the suit in terms of Order XXII Rule 9(2) of
the Code. However, in the present case,
there was no application either for setting
aside of abatement or dismissal of the suit
as required to be filed under Order XXII
Rule
9(2)
of
the
Code.
In
such
circumstances, it is evident that since there
was no application for setting aside
abatement or dismissal of the suit as
contemplated in paragraph 10(f) of the
aforesaid judgment, the connotation and
purport of the application A-59 remain as
an application for substitution under Order
XXII Rule 3 of the Code and by no stretch
of imagination can it be held to be an
application for setting aside of abatement.

19. In view of aforesaid, it is evident that
the respondent has rightly objected to the
maintainability of the appeal since it is not
maintainable from an order rejecting an
application under Order XXII Rule 3 of the
Code.

20. Consequently, the appeal fails and is
dismissed. The parties to bear their own costs.

21. At this juncture, learned counsel for
appellants submits that the appeal is pending
consideration since year 2012 and even if now
an application for setting aside of abatement is
filed before the lower appellate court, it would
have
great
difficulty
with
regard
to
condonation of delay. Regarding the same, it is
apparent from the record that an application
for condonation of delay in filing the
substitution application is already on record
which has been overlooked while passing the
impugned order. As such, the same can be
considered and orders be passed thereupon due
to which pendency of the present appeal
should not come into the way although orders
pertaining to same would be required to be
passed by the court concerned who may also
take into account the provisions of Section 14
of the Limitation Act. However, no such
specific direction can be issued in the present
appeal since it has been dismissed on the issue
of non-maintainability.
----------
(2021)08ILR A26
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.08.2021

BEFORE

THE HON'BLE MANISH MATHUR, J.

F.A.F.O. No. 989 of 2012

M/S Kamalsons ...Appellant
Versus
Mrs. Sajma & Ors. ...Respondents