JUDGMENT : The petitioners are aggrieved of orders dated 24.01.2005, 08.12.2006, 05.09.2007 and 12.06.2008. By order dated 24.01.2005, the application for restoration of the suit was dismissed and by the order dated 05.09.2007, the application for setting-aside the abatement was dismissed. The other two orders are the appellate orders. 2. Briefly stated, Title Suit No.50 of 1993 was instituted by the petitioners’ father namely, Srikant Sao @ Srilal Sahu for a decree for declaration of his title over the landed property described in schedule-B of the plaint and for confirmation of his possession over the suit land on cancellation of the sale-deed, if any, executed in favour of the defendants. The plaintiff has pleaded that he has purchased the suit land from the legal heirs of the recorded tenant namely, Hiru Gope through a registered sale-deed dated 06.10.1959 and he came in peaceful possession over the suit land. However, during the revisional survey operation the defendant nos.1 to 4 claiming that they are purchasers of the suit land through sale-deed executed by Kali Charan Gope started interfering with the plaintiff’s possession over the suit land. The defendant no.4 namely, Rabi Gope filed his written-statement raising various objections to the maintainability of the suit. The case pleaded by the plaintiff that Kashi Gope and Malua became exclusive owners of the land belonging to the recorded tenant namely, Hiru Gope has been dispute by the defendant no.4, pleading that after death of Hiru Gope the entire land recorded in C.S.Khata No.38 was put on auction due to non-payment of the rent to the ex-landlord and it was purchased by Mohan Gope in auction-sale on 15.02.1930. One of the daughters of Hiru Gope filed a petition for cancellation of the auction sale, however, the said application was rejected vide order dated 12.03.1930. The said Mohan Gope thereafter sold the property so purchased by him in auction-sale to Jairam Gope through sale-deed dated 31.10.1932. Baglu Gope, who was grand-father of the defendant no.4; Kali Charan Gope is the father of defendant no.4, was full-blood brother of Jairam Gope and after his death Kali Charan Gope inherited the suit property. The defendant no.4 has further pleaded that during his life time his father sold the land recorded under C.S. Plot No.241 in C.S.Khata No.38 to the defendant nos.2 and 3 through two registered sale-deeds and it has been mutated in their name. The defendant no.4 has further pleaded that during his life time his father sold the land recorded under C.S. Plot No.241 in C.S.Khata No.38 to the defendant nos.2 and 3 through two registered sale-deeds and it has been mutated in their name. Further case set up by the defendants is that during the revisional survey the plaintiff raised objection under the Chhotanagpur Tenancy Act, 1908, however, his objection was rejected by the survey authority. 3. During pendency of the suit, father of the petitioners died on 12.04.2000, however, his counsel filed attendance till 27.12.2002. An application for substitution of original plaintiff was filed, but without mentioning the date of death of the original plaintiff and by an order dated 07.04.2003, Title Suit No.50 of 1993 was dismissed for non-prosecution. However, before that an application for substitution of the legal heirs of the plaintiff, who had in the meantime died on 12.04.2000, was filed on 23.01.2003. The defendant no.4 filed his objection to the application for substitution raising two fold objections; (i) no death certificate was produced and (ii) the suit has automatically abated under Order-XXII Rule 3(2) CPC. Thereafter, the petitioners filed an application under Order IX Rule 9 r/w Section 151 CPC for restoration of the suit and this application was registered as Misc. Case No.7 of 2003. The defendants raised an objection to the maintainability of Misc. Case No.7 of 2003 on the ground that after the death of the plaintiff the suit has automatically abated and, therefore, it cannot be restored. In the proceeding of the miscellaneous case, Pradeep Kumar Sahu was examined as PW-1 and he has produced photocopy of the medical certificates. Misc. Case no.7 of 2003 was dismissed on 24.01.2005 on the ground that the suit had abated and, therefore, it cannot be restored. Subsequently, the appellants filed an application dated 05.01.2007 under Order-XXII Rule (3) & (9) CPC for setting-aside the order of abatement along with an application for condonation of delay which was registered as Misc. Case no.3 of 2007. In paragraph no. 7(iii), 9 and 10 of the petition filed under Order-XXII Rule (3) & (9) CPC, the applicants have pleaded as under: “7.(iii) Thereafter this court continued to proceed as if the plaintiff Srikant Sao had not died and finally the suit was dismissed for non-prosecution on 5/3/03 because no step was taken by the counsel Mr. In paragraph no. 7(iii), 9 and 10 of the petition filed under Order-XXII Rule (3) & (9) CPC, the applicants have pleaded as under: “7.(iii) Thereafter this court continued to proceed as if the plaintiff Srikant Sao had not died and finally the suit was dismissed for non-prosecution on 5/3/03 because no step was taken by the counsel Mr. Banerjee who by then perhaps had realized the serious mistake committed by him by not intimating the court about the date of the death of Srikant Sao and /or praying for substitution. 9. That, these petitioners have consulted a senior Advocate practicing at Hon’ble High Court, Ranchi and have been advised to file a fresh petition for setting aside the abatement of T.S.-50/93 and hence is this petition. 10. That, the petitioners submit that whole period elapsed in prosecuting the Misc. Case No.7/03 and Misc. Appeal No.27/06 i.e. from 5/5/03 to 8/12/06 is liable to be excluded U/s 14 of the Limitation Act while computing the period of delay in filing application for substitution and/or setting aside the abatment.” 4. The trial court has dismissed Misc. Case no.3 of 2007 on 05.09.2007 on the ground that the same is barred by limitation and res-judicata. Against this order Misc. Appeal No.105 of 2007 was preferred in which one of the grounds raised was: “(i) For that ld. Court below committed great error of law and fact by dismissing the appellants’ petition for setting aside abatement U/o XXII Rule-9 CPC on the ground of same being barred by the principle of Res Judicata overlooking and/or glossing over the operative portion of the orders passed both by this court as well as by the appellate court in earlier round of litigation U/O IX Rule -9 CPC. If the trial court had taken note of the findings of this court as well as appellate court in the proceeding U/o IX Rule-9 CPC it would have found that both courts unequivocally held that unless the abatement was set aside the petition for restoration U/O IX Rule 9 CPC was not legally permissible or in other words both court held that the remedy of the legal heirs of the deceased sole plaintiff lied in filing application for setting aside abatement not petition for restoration simpliciter.” 5. Misc. Appeal No.105 of 2007 was also dismissed on the ground that the appeal is barred by limitation. Misc. Appeal No.105 of 2007 was also dismissed on the ground that the appeal is barred by limitation. Paragraph nos.5, 6 and 7 of the appellate order are reproduced below: “5. The learned court below dismissed the second application for substitution of the appellants filed under Order XXII, Rule 3 & 9 CPC on the ground that it was hopelessly barred by limitation and also on the ground that the earlier application for substitution was also dismissed. 6. It appears that the date of death of the original plaintiff Sri Kant Sao @ Srilal Sao is disputed as per the dates given by the appellants themselves before the court below. The earlier application for the substitution of the appellants dated 23.1.2003 was also dismissed. The appellants did not file any appeal against that order of dismissal. Subsequently, after 6 years, the present application for substitution was filed. 7. In my view, this second substitution application under Order XXII, Rule 9 read with Section 151 CPC was hopelessly barred by limitation. The learned court below has rightly dismissed the same. This Misc. appeal is dismissed at the stage of admission itself.” 6. Mr. Indrajit Sinha, the learned counsel for the petitioners submits that the fundamental mistake committed by the courts below is that they have gone by technicalities and not by substance. It is contended that the application for setting-aside the abatement of Title Suit No.50 of 1993 should have been allowed without a separate application for substitution of the legal heirs of the plaintiff. The learned counsel for the petitioners has relied on the decisions rendered in “Mithailal Dalsangar Singh & Ors. vs. Annabai Devram Kini & Ors.” reported in (2003) 10 SCC 691 and “Pankajbhai Rameshbhai Zalavadiya vs. Jethabhai Kalabhai Zalavadiya (Deceased) through L.Rs. & Ors.” reported in (2017) 9 SCC 700 . 7. Mr. R.S. Mazumdar, the learned Senior counsel for the respondents has inter-alia raised two-fold contentions; (i) the petitioners who have made incorrect and false statements in their applications are not entitled for any relief, and (ii) without showing sufficient cause for not preferring the application for setting-aside the abatement and without restoration of the suit, the petitioners cannot be added parties to the suit. The learned Senior counsel for the respondents has referred to the decisions in “Balwant Singh (Dead) vs. Jagdish Singh & Ors.” reported in (2010) 8 SCC 685 and “Karam Kaur vs. Jalandhar Improvement Trust & Ors.” reported in (2014) 6 SCC 409 . 8. It is not in dispute that Title Suit No.50 of 1993 has been dismissed for non-prosecution. The trial Judge has observed that for the last several dates the plaintiff has not taken any step in the matter which reflects that he is not interested in prosecuting the suit. No doubt, the application under Order-IX Rule 9 CPC was an application for restoration of Title Suit No.50 of 1993, but, this application could not have been dismissed on the ground that the suit has abated; the application for substitution was on record and it was never decided by the court. Mr. R.S. Mazumdar, the learned Senior counsel for the contesting respondents, however, has submitted that during pendency of the suit even after the death of the plaintiff his advocate has continued to appear and by an order dated 23.01.2003 he was directed to furnish the date of death of the plaintiff, however, this order was not complied. The suit was thereafter posted for hearing on 05.02.2003, 05.03.2003 and 11.03.2003, and when no step was taken in the matter by an order dated 07.04.2003 the suit was dismissed for non-prosecution. The learned Senior counsel for the respondents, in the aforesaid facts, submits that the application under Order IX Rule 9 CPC has rightly been dismissed. 9. A perusal of the order dated 24.01.2005 by which Misc. Case No.07 of 2003 has been dismissed refers to the medical certificates produced through PW-1 and the stand taken by the legal heirs of the plaintiff that when the conducting counsel informed about dismissal of Title Suit No.50 of 1993, the application under Order IX Rule 9 CPC was filed. The order dated 24.01.2005 records that the application for substitution of the legal heirs of the plaintiff was filed on 23.01.2003 and the learned counsel appearing for the plaintiff was directed to furnish the date of death of the plaintiff. The applicants have also pleaded that it was a mistake of the conducting advocate who did not take steps in the matter. The applicants have also pleaded that it was a mistake of the conducting advocate who did not take steps in the matter. The trial Judge has not recorded a finding that the plea taken in the application under Order IX Rule 9 CPC and the medical certificates produced through PW-1 are false rather, Misc. Case No.07 of 2003 has been dismissed on the ground that the legal heirs of the plaintiff were not party in Title Suit No.50 of 1993 and before the suit has abated they were not substituted in place of the plaintiff and, therefore, the application under Order IX Rule 9 CPC was not maintainable. In my opinion, the application for substitution of the plaintiff when status of the applicants as legal heirs of the plaintiff was not disputed by the defendants, was required to be allowed by the trial Judge, and once the stand taken by the applicants was not disbelieved the application under Order IX Rule 9 CPC could not have been rejected. The appellate court, which has dismissed Misc. Appeal No.27 of 2005, has also committed a similar mistake. Even though there was no formal application for setting-aside the abatement, the application for substitution of the plaintiff should have been treated as an application for setting-aside the abatement and the application for restoration of the suit was required to be decided on merits. Evidently, approach of both the courts below was erroneous. A hyper-technical approach may result in the miscarriage of justice and, therefore, the court should keep in mind that the courts are meant to do substantial justice between the parties and the technical rules or procedures should not be given precedence over doing substantial justice [refer, “Pankajbhai Rameshbhai Zalavadiya vs. Jethabhai Kalabhai Zalavadiya (Deceased) through L.Rs. & Ors.”- (2017) 9 SCC 700 ]. 10. By now it is well-accepted that an application for substitution even without a prayer for setting-aside the abatement can be treated as an application for setting-aside the abatement of the suit and, normally, on technical grounds restoration of the suit should not be declined. In paragraph no.8 of the decision rendered in “Mithailal Dalsangar Singh & Ors. vs. Annabai Devram Kini & Ors.” reported in (2003) 10 SCC 691 , it has been held : “8. In paragraph no.8 of the decision rendered in “Mithailal Dalsangar Singh & Ors. vs. Annabai Devram Kini & Ors.” reported in (2003) 10 SCC 691 , it has been held : “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. 11. The second round of litigation started with the application dated 05.01.2007 by the petitioners under Order XXII Rule 3 & 9 CPC which was filed for setting aside the abatement and it was registered as Misc. Case No.03 of 2007. This was accompanied by an application for condonation of delay in filing this application. The trial Judge, without appreciating that this application was filed within 30 days of dismissal of Misc. Appeal No.27 of 2005 and the petitioners have pleaded plausible explanation for delay in filing the application, dismissed Misc. Case No.03 of 2007 by an order dated 05.09.2007. This was accompanied by an application for condonation of delay in filing this application. The trial Judge, without appreciating that this application was filed within 30 days of dismissal of Misc. Appeal No.27 of 2005 and the petitioners have pleaded plausible explanation for delay in filing the application, dismissed Misc. Case No.03 of 2007 by an order dated 05.09.2007. Another mistake committed by the trial Judge is that Misc. Case No.03 of 2007 has been held barred by res-judicata. The issue involved in an application for restoration under Order IX Rule 9 CPC and an application under Order XXII Rule 3 & 9 CPC cannot be said to be the same or similar and the application for setting-aside the abatement cannot be held barred by res-judicata on the ground that the suit has been dismissed for non-prosecution. The trial Judge has also failed to consider that an application for substitution of the plaintiff was filed during the subsistence of the suit and that application was not decided before the suit was dismissed for non-prosecution and, therefore, technically speaking there was no delay in filing the application for setting aside the abatement. Insofar as, legality of order dated 05.09.2007 is concerned, by simply observing that the application for setting-aside the abatement was hopelessly barred by limitation, the appellate court has dismissed Misc. Appeal No.105 of 2007. Here again, the appellate court has committed a similar mistake in law in dismissing Misc. Appeal No.105 of 2007. 12. Whether the petitioners have shown sufficient cause for not preferring the application for setting-aside the abatement under Order-XXII Rule (3) & (9) CPC r/w Section 151 CPC and whether they would have the benefits of Section 14 of the Limitation Act, should have been dealt with by the appellate court. Chronology of the events and the proceeding which has taken place after dismissal of Title Suit No. 50 of 1993, more particularly, dismissal of Misc. Case No.07 of 2003, prima facie, disclose that the petitioners should be granted benefits of Section 5 and Section 14 of the Limitation Act. The decisions in the cases cited by the learned Senior counsel for the respondents have been rendered in the context of peculiar facts of the case. In “Balwant Singh”, the Supreme Court has observed that the bona-fide reasons for condonation of delay should be considered by the court. It has been observed: “38. The decisions in the cases cited by the learned Senior counsel for the respondents have been rendered in the context of peculiar facts of the case. In “Balwant Singh”, the Supreme Court has observed that the bona-fide reasons for condonation of delay should be considered by the court. It has been observed: “38. Above are the principles which should control the exercise of judicial discretion vested in the court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the court. In addition to this, the court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger Benches as well as equi-Benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the abovestated ingredients; then alone the court would be inclined to condone the delay in the filing of such applications.” 13. To the contention raised on behalf of the respondents, that the petitioners have made false and contradictory statements, all that is required to be recorded is that the facts disputed by the parties to the suit cannot be decided on the basis of affidavits filed by the parties and, moreover, the applications filed by the petitioners have not been dismissed on such a ground. Subject matter of Title Suit No. 50 of 1993 is landed property which is comprised under sale-deed dated 06.10.1959 and, therefore, it cannot be denied that the petitioners have valuable interest involved in the suit. On technicalities a party to the suit normally should not have a walk-over rather, the approach of the court should be to permit the parties to contest the suit on merits by leading evidence, both oral as well as documentary. On technicalities a party to the suit normally should not have a walk-over rather, the approach of the court should be to permit the parties to contest the suit on merits by leading evidence, both oral as well as documentary. However, the courts below, adopting a hyper-technical approach and, that too, on an erroneous legal premise, have dismissed the applications filed by the petitioners. 14. In view of the aforesaid errors committed by the courts below, the impugned orders dated 24.01.2005, 08.12.2006, 05.09.2007 and 12.06.2008 are set-aside. Keeping in view the long pendency of the suit; the suit was instituted in the year 1993, and the aforesaid facts the applications filed by the petitioners are allowed and the trial Judge is directed to conclude the trial of Title Suit No.50 of 1993 keeping in mind the mandate under Order XVII Rule 1 (2) CPC. 15. The writ petition is allowed, in the aforesaid terms.