JUDGMENT 1. - Despite service nobody appeared on behalf respondents to oppose this petition. Bhawani Singh and Ramvati have preferred this writ petition under Article 226 and 227 of the Constitution of India against the order dated 23.05.2013 (Annexure-8) passed in Civil Misc. Case No.126/2011 by the learned Civil Judge (Junior Division) and Judicial Magistrate, First Class, Dholpur whereby the application filed by the petitioner under Order 22, Rule 3 read with Rule 9 CPC was dismissed. 2. The brief facts of the writ petition are that the respondents filed a suit for permanent injunction and for setting aside the order dated 26th June, 1971 against Shri Bhero (father of the petitioner and proforma-respondent No.10) and his brother Shri Rameshwar (proforma-respondents No.8). In the above suit summons were never served and ex-parte judgment & decree was passed on 1st August, 2011. 3. Mr. Bhero and Mr. Rameshwar, defendants filed an application for setting aside ex-parte judgment and decree under Order 9, Rule 13 CPC on 11.10.2011 along with an application under Section 5 of the Indian Limitation Act. During pendency of the application under Order 9, Rule 13 CPC applicant/defendant Mr. Bhero expired on 25.08.2012 and the legal representatives could not file an application for impleading them as Legal Representatives of the defendant Mr. Bhero in time. On 1.8.2012 petitioners and the proforma-respondent No.10 filed an application under Order 22, Rule 3 read with Rule 9 CPC along with an application for condonation of delay under Section 5 of the Limitation Act for impleading them as legal representatives of deceased applicant/defendant Mr. Bhero with prayer of setting aside the abatement. 4. Respondent Nos. 1 to 6 contested the above application on the ground of delay and after hearing learned trial court dismissed the application vide impugned order dated 23rd May, 2013 (Annexure-8) without considering the Limitation prescribed in Article 121 of Limitation Act 1963. 5. Heard. 6. Learned counsel for petitioners have submitted that petitioners and respondent No. 10 were not aware about pendency of application under Order 9, Rule 13 CPC therefore, they could not move an application within prescribed period enshrined in Article 120 of the Limitation Act i.e. 90 days. After receiving information from the counsel they came to know about pendency of application thereafter they immediately moved an application for setting aside abatement and for taking on record the L.Rs of deceased Bhero. After receiving information from the counsel they came to know about pendency of application thereafter they immediately moved an application for setting aside abatement and for taking on record the L.Rs of deceased Bhero. Since there is Limitation of 60 days prescribed under Article 121 for setting aside abatement, therefore, the application under Order 22, Rule 9 was well within time which was wrongly considered as time barred by the learned trial court. Learned trial court without considering the facts that pendency of application under Order 9, Rule 13 CPC was not in the knowledge of petitioners and proforma-respondent No.10, wrongly rejected the application. Therefore, this writ petition may be allowed and the impugned order may be quashed and application under Order 22, Rule 3 read with Rule 9 CPC may be allowed. Learned counsel relied on the judgment delivered in the case of Mr. Ram Nath SAO @ Ram Nath Sahu & Ors. v. Gobardhan Sao & Ors. Reported in 2002 WLC (SC) Civil Page 331. 7. In the matter of Ram Nath Sao (supra) Hon'ble Supreme Court held as under:- "The expression "sufficient cause" within the meaning of section 5 of the Act or Order 22, Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice, when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not, will be dependent upon facts of each case. There can not be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule, and refusal an exception more so when no negligence or inaction or want of bona-fide can be imputed to the defaulting party. On the other hand, while considering the matter, the courts should not lose sight of the fact that by not taking steps within the time prescribed, a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. On the other hand, while considering the matter, the courts should not lose sight of the fact that by not taking steps within the time prescribed, a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter, the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way". 8. Here, in the present case, Bhero expired on 25.3.2012 and the application for setting aside abatement and taking on record the L.Rs. of deceased Bhero was filed on 1.8.2012 which is after expiry of 139 days while under Article 120 of Limitation Act, 90 days time is prescribed for filing application under Order 22, Rule 3 from the death of plaintiff, appellant, or respondent, as the case may be, and 60 days for filing application for setting aside abatement under Rule 22 Rule 9 CPC from the date of abatement. Though the application under Order 22, Rule 3 CPC is barred by Limitation but the application under Order 22, Rule 9 CPC is in time. The ground for delay given by the petitioner and proforma-respondent No.10 is that they were not aware about the facts that application under Order 9, Rule 13 CPC is pending before the Court. They came to know about this fact only after receiving information from the counsel of Mr. Bhero and after receiving information they immediately filed the application. Therefore, the reason assigned by the petitioner and proforma-respondent No.10 seems reasonable. They came to know about this fact only after receiving information from the counsel of Mr. Bhero and after receiving information they immediately filed the application. Therefore, the reason assigned by the petitioner and proforma-respondent No.10 seems reasonable. In Ram Nath Sao's Case (supra) Hon'ble Supreme Court held that by taking a pedantic and hyper technical view of the matter, the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. 9. Therefore, in the views expressed by the Hon'ble Supreme Court and in the facts of the case the impugned order (Annexure-8) dated 23.5.2013 is not sustainable and this writ petition deserves acceptance. 10. Therefore, this writ petition is accepted and the impugned order (Annexure-8) dated 23.5.2013 is set aside and the application filed by the petitioners and proforma-respondent No.10 under Order 22, Rule 3 read with 9 CPC is allowed and the L.Rs., of deceased Bhero are taken on record and learned trial court is directed to proceed further in the matter in accordance with law.Petition allowed. *******