JUDGMENT : Sanjay Kumar Dwivedi, J. Notice upon the Opposite parties have been effected and they have not appeared and in view of that this matter was adjourned on 15.01.2025 with a view to provide one more opportunity to the Opposite parties, and today again, nobody appeared on behalf of the Opposite parties on repeated calls. In view of that, this petition is being heard in absence of the Opposite parties. 2. This petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 09.03.2022 passed by the learned Additional Munsif-X, Giridih in Original Suit No.1423 of 2019, arising out of Partition Suit No.91 of 2017, whereby the petition filed under Order I Rule 10(2) read with Section 151 C.P.C filed by the petitioners has been rejected. 3. Mr. Mukhopadhyay, the learned counsel appearing on behalf of the petitioners submits that the suit was instituted for partition. He further submits that during pendency of the suit Mangori Devi died leaving behind her husband Kalu Mahto and one son Tribhuwan Verma and two daughters namely Usha Devi and Fulmati Devi. He submits that death of the defendant no.32 was not known to the plaintiffs and in view of that, when it has come to his knowledge, a petition was filed for substituting the name of the legal heirs/successors of the defendant no.32 as defendant nos.32(a) to 32(d). He submits that the learned court has dismissed the same on the ground of limitation and further it has been pointed out that the petition has not been filed under the correct provision of law. He submits that said order may kindly be set aside. 4. In course of the argument, the rejoinder filed by the defendants to the said amendment has been produced before the Court and from there it transpires that the ground has been taken of not filing the petition in the correct provision of law and the prayer for setting aside the amendment and limitation. 4. In course of the argument, the rejoinder filed by the defendants to the said amendment has been produced before the Court and from there it transpires that the ground has been taken of not filing the petition in the correct provision of law and the prayer for setting aside the amendment and limitation. Thus, the death of defendant no.32 is accepted in the rejoinder filed by the O.P.no.2 and it has been disclosed that when it has come to the knowledge of the plaintiffs, the petition was filed for substituting the name of the legal heirs/ successors of the defendant no.32 which has been rejected by the learned court only on the ground that correct provision of law as well as limitation has not been explained. 5. A justice oriented approach has to be followed in interpreting the procedure of C.P.C is a well -settled law. A reference may be made to the case of Chinnammal v. P. Arumugham reported in (1990) 1 SCC 513 and in paragraph no.17 of the said judgment, it has been held as under: “17. It is well to remember that the Code of Civil Procedure is a body of procedural law designed to facilitate justice and it should not be treated as an enactment providing for punishments and penalties. The laws of procedure should be so construed as to render justice wherever reasonably possible. It is in our opinion, not unreasonable to demand restitution from a person who ha purchased the property in court auction being aware of the pending appeal against the decree.” 6. The reason given by the learned trial court is difficult to agree with when an application praying for substitution has been made then even assuming that it does not have an explicit reason for setting aside the abatement and condoning of the delay, such prayer could be read as inherent in the prayer for substitution in the interest of justice. A reference may be made to the case of Mithailal Dalsangar Singh v. Annabai Devram Kini reported in (2003) 10 SCC 691 , wherein it has been held that a simple prayer for bringing the legal representative on record without specifically praying for setting aside of an abatement or condonation of delay may in substance be construed as a prayer for setting aside the abatement. Paragraph nos.8,9 and 10 of the said judgment are quoted as under: “ 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. 9 . The courts have to adopt a justice-oriented approach dictated by the uppermost consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the court. The opinion of the trial Judge allowing a prayer for setting aside abatement and his finding on the question of availability of ‘sufficient cause’ within the meaning of sub-rule (2) of Rule 9 of Order 22 and of Section 5 of the Limitation Act, 1963 deserves to be given weight, and once arrived at would not normally be interfered with by superior jurisdiction. 10 . In the present case, … such an approach adopted by the Division Bench verges on too fine a technicality and results in injustice being done. There was no order in writing passed by the court dismissing the entire suit as having abated. The suit has been treated by the Division Bench to have abated in its entirety by operation of law. For a period of ninety days from the date of death of any party the suit remains in a state of suspended animation. And then it abates. The converse would also logically follow. Once the prayer made by the legal representatives of the deceased plaintiff for setting aside the abatement as regards the deceased plaintiff was allowed, and the legal representatives of the deceased plaintiff came on record, the constitution of the suit was rendered good; it revived and the abatement of the suit would be deemed to have been set aside in its entirety even though there was no specific prayer made and no specific order of the court passed in that behalf.” (emphasis supplied) 7. Order-XXII Rule 10-A C.P.C speaks as under: 10A. Power of Court to request any pleader to address it .—The Court may, in its discretion, request any pleader to address it as to any interest which is likely to be affected by its decision on any matter in issue in any suit or proceeding, if the party having the interest which is likely to be so affected is not represented by any pleader. 8. Rule 10-A originally was not with the C.P.C, but it was inserted in the C.P.C in the year 1976 and need of that has been acknowledged by the Hon’ble Supreme Court in the different decisions and the first decision was Gangadhar v. Raj Kumar reported in (1984) 1 SCC 121 and thereafter Rule 10-A was inserted in the C.P.C which cast duty upon a pleader appearing for a party to the suit to intimate the court about the death of such party and further procedure prescribed of notifying of the dead person. It has been pointed out that later on the petitioners have come to know about the death of the defendant no.32 and thereafter the petition has been filed which has been rejected by the learned court. 9. It has been pointed out that later on the petitioners have come to know about the death of the defendant no.32 and thereafter the petition has been filed which has been rejected by the learned court. 9. In view of above considering that it has come to know later on about the death of the defendant no.32 and pursuant to that the petition has been filed and even if it is filed not under the correct provision of law, in light of the judgment of Hon’ble Supreme Court as has been discussed hereinabove, the condonation abatement can be made and as such, the impugned order dated 09.03.2022 passed by the learned Additional Munsif-X, Giridih in Original Suit No.1423 of 2019, arising out of Partition Suit No.91 of 2017, is set-aside. 10. The petition filed for bringing on record the legal heirs/ successors of the defendant no.32 is allowed. 11. The learned court will allow the substitution of defendant no.32 by his legal heirs/ successors, and will proceed in accordance with law. 12. C.M.P. No.1021 of 2023 is allowed in the above terms and disposed of. 13. Pending petition if any also stands disposed of accordingly.