Pushpendra Singh Bhati, J. - (1.) Petitioner has preferred this writ petition with the following prayer :- " 1. That the impugned order dated 11.09.2017 passed by learned Civil Judge, Siwana, District Barmer dismissing application under Order 22 Rule 4 of CPC, 1908 may kindly be quashed and set aside. 2. Any other appropriate order, which deemed fit in the facts and circumstances of the case may kindly be passed in favour of the petitioner."
(2.) Learned counsel for the petitioner states that a civil suit was filed by Late Shri Sirmal titles as Sirmal Vs. Nazir Hussain & Ors. under Rent Control Act, 1950 for recovery of possession, compensation and recovery of due rent against Shri Nazir Hussain and Smt. Rehmat on 23.03.1996. The proceedings were going on, during which Shri Nazir Hussain expired on 20.02.2011. However, an application under Order 22 Rule 4 along with Section 5 of the Limitation Act was preferred before the learned trial court seeking the prayer of taking the LR's on record and also setting aside the abatement.
(3.) Learned counsel for the petitioner states that though the application was for under Rule 22 Rule 4 of the CPC but the prayer in fact reflected the terms of Order 22 Rule 9. Learned counsel for the petitioner further points out that the impugned order has been passed by the learned court below dismissing the application under Order 22 Rule 4 of the CPC on the ground that the abatement had already occurred and therefore, the setting aside of abatement was not possible in the application. 3. Learned counsel for the petitioner has relied upon the judgment passed by Hon'ble Apex Court in the matter of Ramdas Shivram Sattur Vs. Rameshchandera Popatlal Shah & Ors., 2007 4 CivCC 155 (S.C.), the relevant portion of this judgment, reads as under :- "12. In Mithailal Dalsangar Singh ands Ors. v. Annabi Devram Kini and Ors, 2003 10 SCC 691, inter alia, it was observed as follows: 8. Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside the abatement. So also a prayer for setting aside abatement as regards one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. Once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for. 9. The courts have to adopt a justice-oriented approach dictated by the uppermost consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the court. The opinion of the trial Judge allowing a prayer for setting aside abatement and his finding on the question of availability of sufficient cause within the meaning of sub-rule (2) of Rule 9 of Order 22 and of Section 5 of the Limitation Act, 1963 deserves to be given weight, and once arrived at would not normally be interfered with by superior jurisdiction. 10. In the present case, the learned trial Judge found sufficient cause for condonation of delay in moving the application and such finding having been reasonably arrived at and based on the material available, was not open for interference by the Division Bench. In fact, the Division Bench has not even reversed that finding; rather the Division Bench has proceeded on the reasoning that the suit filed by three plaintiffs having abated in its entirety by reason of the death of one of the plaintiffs, and then the fact that no prayer was made by the two surviving plaintiffs as also by the legal representatives of the deceased plaintiff for setting aside of the abatement in its entirety, the suit could not have been revived. In our opinion, such an approach adopted by the Division Bench verges on too fine a technicality and results in injustice being done. There was no order in writing passed by the court dismissing the entire suit as having abated. The suit has been treated by the Division Bench to have abated in its entirety by operation of law. For a period of ninety days from the date of death of any party the suit remains in a state of suspended animation. And then it abates. The converse would also logically follow. Once the prayer made by the legal representatives of the deceased plaintiff for setting aside the abatement as regards the deceased plaintiff was allowed, and the legal representatives of the deceased plaintiff came on record, the constitution of the suit was rendered good; it revived and the abatement of the suit would be deemed to have been set aside in its entirely even though there was no specific prayer made and no specific order of the court passed in that behalf.";