JUDGMENT 1. - Heard learned counsel for the parties. 2. Plaintiff/respondent No.2 Pooran Chand, instituted a suit for eviction and arrears of rent in respect of disputed shop against the defendant/petitioner in the Court of Civil Judge (Junior Division) Bansoor, District Alwar, which was decreed vide judgment and decree dated 03.10.2000. Being aggrieved with the same, the defendant preferred a regular appeal before the First Appellate Court. 3. During the pendency of the regular appeal, the plaintiff/respondent Pooran Chand died on 17.05.2004, but no steps were taken by the defendant/appellant for bringing legal representatives of deceased on record, therefore, the Counsel for the respondents moved an application dated 27.05.2005 to dismiss the appeal as abated. 4. The Additional District Judge, Behror Camp at Bansoor, Alwar vide its order dated 22.12.2005 allowed the application filed by the Counsel for the respondents and, consequently dismissed the appeal of the defendant as abated. Thereafter, the defendant filed an application dated 09.01.2006 before the Appellate Court under Order 22 Rule 4 (5) read with Section 151 of the Code of Civil Procedure , 1908 for substitution of legal representatives of deceased respondent on record and for setting aside the order of abatement dated 22.12.2005. 5. The Appellate Court heard the arguments of the learned counsel for the applicant/defendant on the maintainability of the application and vide its order dated 24.01.2006 dismissed the application for setting aside the order of abatement. Being aggrieved with the order dated 22.12.2005 passed by the Appellate Court, the petitioner preferred S.B. Civil Miscellaneous Appeal bearing No.562 of 2006 before this Court on 06.02.2006 and, against the order dated 24.01.2006 preferred the present writ petition under Articles 226 and 227 of the Constitution of India. 6. The civil miscellaneous appeal was listed before the Coordinate Bench of this Court on 01.08.2006 and a notice was issued to the respondents and, meanwhile the execution of the judgment and decree dated 03.10.2000 passed by the trial Court was stayed. 7. The present writ petition was listed before this Court on 20.05.2008 and it was directed that this writ petition be listed, along with S.B. Civil Miscellaneous Appeal No.562 of 2006, and both the cases are listed today and were heard simultaneously, therefore, both are being disposed off by separate order. 8. 7. The present writ petition was listed before this Court on 20.05.2008 and it was directed that this writ petition be listed, along with S.B. Civil Miscellaneous Appeal No.562 of 2006, and both the cases are listed today and were heard simultaneously, therefore, both are being disposed off by separate order. 8. The learned counsel for the petitioner contended that the defendant could not come to know about the death of the plaintiff Pooran Chand before 27.05.2005 when an application was filed by the Counsel for the respondents before the learned Appellate Court. However, the defendant could not find out the details of the legal representatives of deceased respondent Pooran Chand, therefore, necessary application could not be filed. The learned Appellate Court dismissed the appeal as abated on 22.12.2005. Thereafter, an application dated 09.01.2006 was filed giving out the details of legal representatives of deceased respondent Pooran Chand, explained the delay in filing the application, and made a prayer in the application for substitution of legal representatives as well as setting aside the order of abatement and for restoration of the appeal. The learned trial Court without issuing notice of the application to the opposite party and without considering the provisions of law correctly, wrongly dismissed the application only on the ground that it is not maintainable vide order dated 24.01.2006. He contended that the substitution of legal representatives could have been made under Rule 4 (5) of Order 22, Civil Procedure Code., more-so his application was also there under Section 151, Civil Procedure Code., where the Appellate Court could have passed an order for substitution of legal representatives as well as for setting aside the abatement in the interest of justice, but by taking a technical view, the Appellate Court illegally dismissed the application of the petitioner. He contended that the present dispute was in respect of eviction of the petitioner from the disputed shop, therefore, looking to the nature of controversy involved in the present case, the delay in fling the application should have been condoned and the legal representatives should have been taken on record by setting aside the order of abatement. So far as the Civil Miscellaneous Appeal bearing No.562 of 2006 is concerned, the same will be withdrawn by him as and when his application for substitution and for setting aside the abatement is allowed by this Court in the present writ petition. 9. So far as the Civil Miscellaneous Appeal bearing No.562 of 2006 is concerned, the same will be withdrawn by him as and when his application for substitution and for setting aside the abatement is allowed by this Court in the present writ petition. 9. In support of his contention, he relied upon Brig. Sawai Bhawani Singh v. Indian Hotels Co. Ltd., and Others, reported in (1997) 1 S.C.C. Page 260 , K. Rudrappa v. Shivappa, reported in 2005 (1) W.L.C. (S.C.) Civil, Page 334 and Mithalal Dalsangar Singh and Others v. Annabai Devram Kini and Others, reported in 2003 (2) W.L.C. (S.C.) Civil, Page 597. 10. The learned counsel for the respondents defended the impugned order passed by the Appellate court and prayed for dismissal of the writ petition. 11. I have considered the submissions of the learned counsel for both the parties and examined the impugned order passed by the Appellate Court in the light of their submissions, as well as the observations of the Hon'ble Supreme Court, in the above referred cases and, after considering the same, I find that the Court below committed an illegality in dismissing the application of the petitioner and the impugned order is liable to be set aside. 12. The Hon'ble Supreme Court, in above referred cases, considered the scope of Order 22 Rule 3 and Section 151, of the Code of Civil Procedure, 1908, wherein an application under Order 22 Rule 3, Civil Procedure Code. was filed after expiry of period of limitation without any separate application under Order 22 Rule 9, Civil Procedure Code., and held that such technical objections should not come in doing full and complete justice between the parties. 13. Para No.10 of the judgment of the Hon'ble Supreme Court in case of of K Rudrappa v. Shivappa (Supra) is reproduced as under : "Having heard learned counsel for the parties, in our opinion, the appeal deserves to be allowed. The case of the appellant before the District Court was that he was not aware of the pendency of the appeal filed by his father against the order passed by the Tehsildar. The father of the appellant died in June, 1994 and the appellant came to know about the pendency of appeal somewhere in September, 1994, when he received a communication from the advocate engaged by his father. The father of the appellant died in June, 1994 and the appellant came to know about the pendency of appeal somewhere in September, 1994, when he received a communication from the advocate engaged by his father. Immediately, therefore, he contacted the said advocate, informed him regarding the death of his father and made an application. In such circumstances, in our opinion, the learned counsel for the appellant is right in submitting that a hypertechnical view ought to have been taken by the District Court in rejecting the application inter alia observing that no prayer, for setting aside abatement of appeal was made and there was also no prayer for condonation of delay. In any case, when separate applications were made, they ought to have been allowed. In our opinion, such technical objections should not come in doing full and complete justice between the parties. In our considered opinion, the High court ought to have set aside the order passed by the District Court and it ought to have granted the prayer of the appellant for bringing them on record as heirs and legal representatives of deceased Hanumanthappa and by directing the District Court to dispose of the appeal on its own merits. By not doing so, even the High Court has also not acted according to law". 14. In view of above discussions and reasons, the writ petition is allowed. The impugned order dated 24.01.2006 passed by the Additional District Judge, Behror, Camp at Bansoor, Alwar is set aside. The application filed by the petitioner for substitution of legal representatives of deceased respondent Pooran Chand and for setting aside the order of abatement of the appeal, is allowed. The legal representatives of deceased Pooran Chand, as mentioned in the application are taken on record. The order of abatement passed by the Appellate Court is set aside. The appeal is restored to its original number. 15. The learned counsel for the respondents contended that the present suit for eviction was filed by the plaintiff in the year, 1997 and the delay has occurred on account of negligence on the part of the defendant, therefore, a suitable direction may be given to the Appellate Court to decide the appeal preferably within a period of three-months and a reasonable costs may also be awarded. The prayer made by the learned counsel for the plaintiff/respondents is reasonable. 16. The prayer made by the learned counsel for the plaintiff/respondents is reasonable. 16. The aforesaid application of the defendant/ petitioner is allowed at the costs of Rs.3000/- which will be paid by the defendant to the plaintiffs on or before the next date to be fixed by this Court.17-18. Both the parties are directed to appear before the Appellate Court i.e. Additional District Judge, Behror, Camp at Bansoor, Alwar on 8th July, 2008. The Appellate Court is directed to decide the appeal within a period of three-months from the date of appearance of the parties. It is made clear that in case the defendant/ petitioner fails to pay the amount of costs on or before the aforesaid date, then this writ petition will be deemed to have been dismissed and, no further opportunity in this regard will be granted by the Appellate Court to the petitioner.19. So far as this writ petition is concerned, the costs is made easy.20. In view of above order, there is no need to pass any order on the application filed by the respondents under Article 226 (3) of the Constitution of India and the same stands disposed of.Writ Petition Allowed.. *******