Ravi Nandan Sahay, J.:- This is plaintiff's appeal against the order of the Subordinate Judge dated 31.8.1995 holding that Title Suit No. 28 of 1992 has abated for non-substitution of legal heirs of the plaintiffs within time. 2. There were two plaintiffs in the suit, namely, plaintiff no. 1 Bishundeo Singh and his wife Smt. Anup Devi, who was Plaintiff no. 2. During the pendency of the suit Bishundeo Singh died on 28.4.1992. Accordingly a petition for substitution was filed on 4.1.1993 by his legal heirs. This substitution petition was filed without any vakalatnama On 16.5.1993 the plaintiff no.2 also died and on 24.3.1994 an application was filed by the heirs. In the petition dated 24.3.1994 it was stated that due to fault of pairvikar the vatalatnama was not filed along with the substitution petition on 4.1.1993. It was further stated that the plaintiff no. 1 had actually died on 28.11.1992 and not on 28.4.1992. 3. The prayer for substitution was opposed by the defendants on the plea that the application for substitution suffers from serious defect as it was not filed through a lawyer and hence it was not a proper application for substitution. So far plaintiff no.2 is concerned, no application for substitution was filed and on 28.4.1995 an application was filed under Order 22 Rule 5, read with Section 151 of the Code of Civil Procedure praying that all the previous applications be treated as not pressed. As there is no substitution of plaintiff no. 1, the suit shall abate. 4. Learned Subordinate Judge accepting the stand of the defendants held the suit to have abated, the legality of which order is to be considered in this appeal. 5. There appears to be fundamental error in the order of the Subordinate Judge - There is no dispute that the appellants had filed substitution petition on 4.1.1993 for their substitution on account of death of plaintiff no. 1 Bishundeo Singh but the petition was not supported by vakalatnama. There is no provision in the Code of Civil Procedure for a party to appear only through his counsel. A party can appear in person also. Order 3 Rules 1, 2 and 4 C.P.C. provide for appearance of the parties through counsel. The lawyer can only appear if he is authorised by the party by executing vakalatnama in his favour. There is no provision in the Code of Civil Procedure for a party to appear only through his counsel. A party can appear in person also. Order 3 Rules 1, 2 and 4 C.P.C. provide for appearance of the parties through counsel. The lawyer can only appear if he is authorised by the party by executing vakalatnama in his favour. Learned Subordinate Judge was under misconception that the party cannot appear in person. Therefore, the substitution petition filed, on 4.1.1993 cannot be said to be defective and the court below should have very well passed order thereon. There is no question of abatement of the suit on the death of plaintiff no. 1 because plaintiff no. 2 was representing his estate. The appellants had filed an application for substitution. They should have been substituted. Since application for substitution had already been filed and the appellants were the legal heirs of both the plaintiff. there was no question of abatement of appeal. The death of Bishundeo Singh was not material since plaintiff no. 2 was alive. 6. Learned counsel for respondents has raised preliminary objection that this Miscellaneous Appeal is not maintainable under Order 43, Rule 1 (k) of the C.P.C. which a provide for an appeal against an order under Rule 9 of Order XXII refusing, to set aside the abatement or dismissal of a suit. Learned counsel for the respondents has submitted that the remedy of the appellants was to apply under Rule 9 (2) of Order 22 C.P.C. to set aside the order of abatement or to file a fresh suit in view of the Explanation appended under Order 22, Rule 9, C.P.C. He submitted that fresh suit can be brought on the same cause of action. This argument is totally mis conceived. There is an explanation appended to O.23, R. 9. Its object is to clarify that when sub-rule (1) says that where a suit abates or is dismissed, no fresh suit shall be brought on the same cause of action, it does not mean that sub rule also bars a defence in any later suit based on the facts which constituted the cause of action in the suit to accepted or dismissed Such a clarification because necessary in view of a conflict of opinion on the effect or the words no fresh suit shall be brought on the same cause of action in sub rule (1). In this case the appellant applied for substitution is place of plaintiff no. 1. No Order of abatement had been recorded when the application was filed. The learned Subordinate Judge rejected the prayer for substitution and held that the suit is abated. The appellants could not apply under sub-rule (2), The only remedy to the appellants was to file appeal against the order. Although the situation in this case is not covered strictly by Order 43, rule 1 (k) but still the appellant has sight to file an appeal or revision. This question was considered in Bhariu v. Udmi & ors. reported in AIR 1934 Lahore 315. it has been held that an application to bring on the record the legal representative of deceased party after the expiry of the time fixed for this purpose must be deemed to be an application to set aside the abatement and an order refusing to set aside an abatement is appealable under Order 43, Rule 1 (k). The learned single judge has observed : "In this view the, learned District Judge is wrong because O. 43, R. l (k) expressly gives a right of appeal to a party against an order under R. 9, O. 22 refusing to set aside the abatement or dismissal of a suit. It has often been held by this Court that an application to bring on the record the legal representatives of a deceased party after the expiry of the time fixed for this purpose must be deemed to be an application to set aside the abatement and the order of 9th March, 1932, expressly declined to let aside the abatement of the suit.” 7. In Seshamma v. Yeeranki Peda Venkata Rao & ors, reported in AIR 1924 Madras 713 it has been held that when it is necessary, in order to do substantial justice, to brush aside technicalities, the court will not be too scrupulous in enforcing them but when there are no merits in the plaintiff', favour and the merits are on the appellant's side, the Court will not go out of its way to clear from the plaintiff's path technical obstacles. I find no substance in the argument of the learned counsel for the respondents. 8. I find no substance in the argument of the learned counsel for the respondents. 8. I view of the facts stated above the order of the learned subordinate judge holding the suit abated is unsustainable in the eye of law and must be set aside. This appeal is accordingly allowed and the order of abatement of the suit is set aside and the appellants are ordered to be substituted in place of deceased plaintiff However, there shall be no order as to costs. Appeal allowed.