JUDGMENT : 1. This writ petition is under Article 227 of the Constitution of India whereby and where under the order dated 05.06.2017 passed in Title Suit No.158 of 2013 by the Civil Judge (Sr. Div.)-IV, is under challenge, by which, the petition dated 27.01.2017 filed by the plaintiff for substitution of the plaintiff through his legal heirs, has been rejected. 2. The brief facts of the case of the petitioner is that the title suit has been filed being Title Suit No.158 of 2013 by the petitioner/plaintiff for declaration of right in title. He has been informed in course of the proceeding of the suit that one Md. Kurban Ansari, defendant no.1 has died on 02.09.2016 which prompted the petitioner to make application on 27.01.2017 praying for expunging the name of the defendant no.1 from the array of the defendants and substituting his legal representative in his place supported by one petition filed under Section 5 of the Limitation Act, 1963 for condonation of delay, if any, but the same has been rejected by the impugned order, against which, the instant writ petition. 3. Mr. Prabhash Ch. Sinha, learned counsel appearing for the petitioner, has submitted that the defendant no.1 being the sole contesting defendant is required to be substituted through his legal heir but due to his death on 02.09.2016, which was not within his knowledge, therefore, appropriate application within the time for substituting him through legal representative, could not been filed and immediately after getting information to that effect, an appropriate application has been filed along with a petition under Section 5 of the Limitation Act, 1963 but the trial court merely on presumption by recording the same to the effect that since the plaintiff/petitioner and the defendant no.1 belongs to the same village as such there is no question of having knowledge about the death of the defendant no.1 by the plaintiff and taking the said aforesaid ground into consideration the petition filed for substitution, has been rejected. He further submits that it is not always true that if a person residing in the same locality will be aware about the death of the other person of the same locality, the question herein is that when the petitioner has been informed about the death occurred on 21.09.2016 he, immediately, has filed a petition on 27.01.2017 supported by a petition filed under Section 5 of the Limitation Act, 1963 for condonation of delay, if any, and as such the trial court ought to have allowed the same considering the issue of substantial justice and since it has not been allowed the defendant no.1 being the contesting defendant, if not be allowed to be substituted through his legal heir, it will nothing but lead to miscarriage of justice. 4. Mr. R.N. Sahay, learned senior counsel appearing for the respondent no.4, the contesting respondent, submits that there is no error in the order impugned as has been recorded in the impugned order the same also cannot be disbelieved since it is the admitted position that the defendant no.1 and the plaintiff are residing in the same village and even after knowing about the same, no such application has been filed within time and taking it into consideration the petition filed on 27.01.2017 for substitution of defendant no.1 through his legal representative, has been rejected since the petitioner has not been bothered about filing of the appropriate application within time and as such the impugned order may not be interfered with. 5. Having heard the learned counsel for the parties and on appreciation of their rival submissions the undisputed facts in this case is that a title suit has been filed by the petitioner/plaintiff against the defendants altogether two in number. The defendant namely Md. Kurban Ansari has died on 02.09.2016 but within the time as has been stipulated under the provision of Order XXII Rule 10 A of the Code of Civil Procedure for substituting the defendant no.1, no such steps have been taken rather the steps have been taken after lapse of statutory period by making an application to that effect on 27.01.2017 supported by a petition filed under Section 5 of the Limitation Act, 1963 for substitution of the defendant no.1 through his legal representative. 6. 6. It is evident from the material available on record as also the reasons recorded in the impugned order that the petitioner has taken ground in the petition that immediately after knowledge about the death of the defendant no.1 who has died on 02.09.2016 substitution petition has been filed although not within the time rather it has been filed after some delay. Such application has seriously been objected by the defendant by taking the ground that the petitioner/plaintiff and the defendant no.1 belongs to the same village and as such it cannot be believed that the petitioner is not knowing about the death of the defendant no.1, basing upon which, the petition dated 27.01.2017, has been rejected. 7. This Court sitting under Article 227 of the Constitution of India is to see the issues in the light of the principle of substantial justice and there cannot be any miscarriage of justice as has been submitted by the learned counsel for the parties that the defendant no.1 as also the petitioner/plaintiff the contesting party to the suit. 8. Admittedly, the defendant no.1 has died on 02.09.2016 but within the time no such steps have been taken for substitution of the defendant no.1 through his legal representative, and when it has been filed on 27.01.2017 making the prayer to that effect, the same has been rejected. 9. 8. Admittedly, the defendant no.1 has died on 02.09.2016 but within the time no such steps have been taken for substitution of the defendant no.1 through his legal representative, and when it has been filed on 27.01.2017 making the prayer to that effect, the same has been rejected. 9. The rejection of the substitution will ultimately lead the abatement so far as the defendant no.1 is concerned, meaning thereby, there cannot be any declaration by the competent court of civil jurisdiction in the aforesaid suit against the defendant no.1 it for some delay the substitution petition would not be allowed by substituting the defendant no.1 through his legal representative, the adjudication of the issues so far as the claim of the defendant no.1 and the petitioner would not be possible and as such rejecting the substitution petition for the reason of delay, cannot be said to be proper rather it will lead to deprive the parties from substantial justice and also it will lead to miscarriage of justice, therefore, this Court is of the view that the ground as has been taken by the trial court regarding the residence of the plaintiff and the defendant no.1, they belongs to the same village, as such, it cannot be said to be valid ground for knowing about the death of the defendant no.1, and hence, cannot be said to be the conclusive reasoning and may be possible that even residing in the same area the occurrence of death cannot be known. 10. The fact herein is that while the trial court has taken such ground, the same can only be said to be on presumption and as such the same cannot be said to be proper. 11. This Court after taking into consideration the aforesaid fact and if the impugned order would be allowed to stand the proper adjudication with respect to the dispute agitated by the petitioner/plaintiff, would be suffered, this Court sitting under Article 227 of the Constitution of India and taking into consideration the issue of substantial justice, is of the view that the impugned order dated 05.06.2017 needs to be set aside accordingly the same is set aside in the result the substitution petition dated 27.01.2017 has been allowed. 12. In view thereof, the writ petition is accordingly, allowed.