JUDGMENT R.K. Dhusiya, Member. - This second appeal has been filed against the judgment and decree dated 18.8.1983 passed by the learned Additional Commissioner, Gorakhpur Division, Gorakhpur by which he has abated the appeal for want of substitution. 2. It appears that during the pendency of the first appeal an application for substitution was moved by the appellant stating therein that Birbali died within 90 days and his legal heirs mentioned in the application be substituted. The then learned Additional Commissioner by the order dated 16.1.1981 allowed the substitution application. On 27.9.1982, Ishwar Chand, the son of deceased Birbali moved an application to the effect that his father died on 6.2.1979 and the application has been filed at a very late stage as such, the appeal itself has abated for want of substitution. The learned Additional Commissioner by his order dated 18.8.1983 abated the appeal for was of substitution application. Hence, aggrieved by that order the instant second appeal has been filed. 3. I have heard the learned counsel for the appellant and have also seen the relevant papers on the file. No one is present from the other side inspite of notice. 4. The learned counsel for the appellant has mainly argued that the learned Additional Commissioner committed apparent error in abating the appeal for want of substitution which should not be abated: that a photo copy of the death certificate has been filed which cannot be read into evidence. 5. From the perusal of file and after hearing the counsel for the appellant, I find that in the instant case substitution application was filed on 28.2.1980 and that application was allowed on 16.1.1991. On 27.9.1982 the opposite-party moved and application with the prayer to set aside the order dated 16.1.1981 and to dismiss the appeal as abated for non-substitution within the limitation prescribed. The learned Additional Commissioner by his order dated 18.8.1983 abated the appeal. Many higher courts are of the opinion that in such cases a lenient view should be taken and the parties should not be thrown out merely on technicalities. The order passed by the learned Additional Commissioner, is, therefore, liable to be set aside. 6. In view of the above, I allow the second appeal, set aside the order dated 18.8.1983 and remand the case to the lower appellate court to decide the case on merits after affording the opportunity of hearing on merits. The order passed by the learned Additional Commissioner, is, therefore, liable to be set aside. 6. In view of the above, I allow the second appeal, set aside the order dated 18.8.1983 and remand the case to the lower appellate court to decide the case on merits after affording the opportunity of hearing on merits. The file be sent as early as possible.