Dahelu (deceased) through LRs versus Bhadaru & Ors. CMP(M) No. 1669 of 2025 Reserved on 01.04.2026. 25.05.2026 Present: Mr Sanjeev Kuthiala, Senior Advocate, with Ms Tamanna Sharma, Advocate, for appellants No.1(a), 1(b), 1(d) and 1(e). Appellants No.1 (c) is stated to have expired. Mr Rajesh Mandhotra, Advocate, for respondent No.1. Names of respondents No.2 to 4 and 9 have been deleted. None for respondents No. 5(a) to 5(e), 6, 7, 10 and 11. Respondent No.8 is stated to have died. The appellant/applicant has filed the present application under Order XXII Rule 4, 5 and 9, read with Section 151 of the Code of Civil Procedure (CPC), and Section 5 of the Limitation Act for bringing on record the legal representative of the deceased respondent/non- applicant No.8 Raghubir Singh, condoning the delay in filing the application and setting aside the abatement, if any. A note has been affixed to the application that the application has been filed based on information given by the learned counsel representing the respondents in the reply to CMP No. 13425 of 2024, and the application is formal in nature; hence, the necessity of filing an affidavit be dispensed with. 2. Mr Rajesh Mandhotra, learned counsel for respondent No.1, submitted that the application is defective since it is not accompanied by an affidavit as required under Chapter 7 Rule 5 of the High Court of Himachal Pradesh (Appellate Side) Rules, 1977. Hence, he prayed that the application be dismissed. 3. Mr Sanjeev Kuthiala, learned Senior Counsel, assisted by Ms Tamanna Sharma, learned counsel for appellants No. 1(a), 1(b), 1(d) and 1(e), submitted that the requirement of filing the affidavit is directory and not mandatory. The information was supplied by the learned counsel, and the affidavit could not have been filed. The objection raised on behalf of the non-applicant is not sustainable. Hence, he prayed that the present application be allowed. 4. I have given a considerable thought to the submissions made at the bar and have gone through the records carefully. 5. Chapter 7-part (a) Rule 5 of the High Court of Himachal Pradesh, Appellate Side Rules, 1997 reads as under: “5. Affidavit to accompany application made under Rules 5 and 6, and application to add or substitute a party Every application of the kind specified in Rule 4 of these rules and every application under Order XXII, Rule 10 of the Code to make the petitioner or some other person an additional or substituted party in a suit or appeal, shall, as to allegations of fact contained in such application, be verified by affidavit.” 6. A bare perusal of the Rule reveals that the application has to be verified by an affidavit. The Rule uses the word “shall” and not “may”, clearly suggesting that the provision is mandatory and not directory. 7. A similar provision was considered by this Court in Surajkund Temple Idol versus Hari Kishan ILR 1973 HP 1314, and it was held that the requirement of filing the affidavit along with an application under Order 22 of the CPC is mandatory and non-filing of the affidavit is an illegality. It was observed: 7. Rule 19 of Chapter I of the Delhi High Court (Original Side) Rules, 1967, hereinafter called the Rules of 1967, states that, except to the extent otherwise provided in these rules, the provisions of the Civil Procedure Code shall apply to all proceedings on the original side. Chapter IX of the Rules of 1967 deals with the interlocutory applications. Rule 2(c) states that the application shall be supported by an affidavit stating clearly the grounds and the facts on which the application is based. There can be no denying the fact that the object of the affidavit is to testify to the facts mentioned in the application either on the personal knowledge of the applicant-deponent or on the information derived or to his belief. The learned counsel for the petitioner has also invited reference to Rule 3 of Chapter IX, and according to him, under clause (iv) of Rule 3, the non-filing of an affidavit in support of an application was a mere irregularity. But reading Rule 3 as a whole, it would appear that it does not apply to the affidavits that are to accompany the application to be filed. It deals only with the affidavits, etc., to the counter- affidavits, and which may be filed by leave of the Court. 8. Further, the Punjab High Court Rules and Orders, Volume- V, Chapter I-C has also been relied upon. Rule 5 of Chapter I-C deals with the application to bring on record the legal representatives of the parties. Rule 6 deals with the application for setting aside the abatement or dismissal. Rule 7 says that every application of the kind mentioned in Rules 5 and 6 of these rules and every application under Order XXII, Rule 10 of the Civil Procedure Code to make the petitioner or some other person an additional or substituted party in a suit or appeal, shall, as to the allegations of fact contained in such application, be verified by affidavit. From the reading of the Rules of 1967, which are applicable to Himachal Pradesh High Court (on the original side) and the Punjab High Court Rules and Orders, the only conclusion that can be deduced is that the rules are mandatory and not directory. The non- observance of these rules would render the application invalid. The rules enjoin an affidavit to be filed in support of the application, and the non- observance thereof will necessarily mean that there is no application before the Court. 9. In Mahanth Ram Das vs. Ganga Das (A.I.R. 1961, S.C. 882) relied upon by the learned counsel, for the petitioner the Court had passed a pre-emptory order fixing the period for payment of deficit court-fee and the appellant made an application for extension of time before the time fixed had run out, but the application came up for hearing before a Division Bench after the period had run out. It was in view of this stand that it was held that the High Court was not powerless to enlarge the time, even though it had pre-emptorily fixed the period for payment. This authority, in my opinion, is not applicable because here it was not the time granted to the petitioner for filing the application. In the instant case, under the rules and the law, the application should have been filed duly accompanied by an affidavit. The petitioner presented the application on the 18th without any affidavit, which means that there was no application at all. Further, the same was returned to him with the direction to refile the same within four days, accompanied by an affidavit, but the petitioner failed to comply. He did not present the same till the 11th May, 1973, by which time the period of limitation had run out, and the suit had abated. 10. The second authority relied upon is Wall Mohammad Khan vs. Ishak AH Khan and others (A.I.R. 1931, Allahabad 507). It deals with the omission to comply with the provisions regarding presentation of the plaint and the absence of signatures, verification or presentation on the part of some of the plaintiffs. It further says that these provisions requiring verification, etc., are not mandatory, and if there is an omission to comply with those provisions, the same is an irregularity which can be cured. But the present cannot be said to be an irregularity when the rules so enjoin. Further, verification is different from the filing of an affidavit required under the rules. 11. The further authority is Bhalu Naik vs. Hetno Naikani (A.I.R. 1969 Orissa 236), in which the application for interim maintenance and litigation expenses was not supported by an affidavit, and it was held that the requirement of clause (b) of rule 13 did not affect the initial jurisdiction of the Court to entertain such an application. Rule 6 {a) is analogous to the provisions of the Code of Civil Procedure for presentation and verification of the plaint. In the instant case, the petition, not having been accompanied by an affidavit, was returned to the petitioner, and four days were granted to him. He did not file the same till the 11th May, and hence there was no petition before the Court, and, therefore, this authority is distinguishable. 12. Similarly in All India Reporters Ltd., Bombay with Branch Office at Nagpur and another vs. Ram Chandra Dhondo Datar (A.I.R. 1961 Bombay 292), it was held that the facts regarding to the signatures, verification or presentation of the plaint are cured on a day subsequent to the date of filing the suit, the date of institution of the plaint is not changed to the sequsequent date. The date of institution of the suit or the date from which an amendment takes effect does not depend on the discretion of the Court. Of course, the Court has a discretion to allow or not to allow an amendment of the pleadings or the re-signing or re-verification of the plaint. Once the discretion is exercised, the amendment of the plaint or the fresh signature or verification of the plaint relates to the original date of the suit. Therefore, in view of its different facts, the case has no application to the facts of the case in hand. 13. The further authority is Gobind Singh vs. Deoraj (A.I.R. 1958 Rajasthan 128). In this case, the execution application did not bear the signature of the decree-holder on the Vakalatnama of the Vakil, and the Court held that such a defect is not and cannot be called an illegality. It would be an irregularity which may be allowed to be cured by the Court, but only in those cases where it finds that the mistake has been committed bona fide and where the party has not committed gross negligence. Therefore, the facts of this case are also distinguishable. 14. From the aforesaid discussion, I am of the view that the non-filing of the affidavit with the application as required by the Rules of 1967, as also the Rules 5, 6 and 7 of Chapter 1-C of the Punjab High Court Rules and Orders Volume V, is an illegality. On the 18th April, 1972, he presented the application unaccompanied by an affidavit, and it was returned to him with a direction to re-file the same on the 22nd, but instead of re-filing it on the said date, he re-filed the same on the 11th May, 1972, and, therefore, there was no application till the 11th May before the Court. The application filed earlier was invalid. Hence, the issue is decided against the petitioner. 8. Therefore, in view of this binding precedent, the objection raised on behalf of the learned counsel for respondent No.1 has to be upheld that the application is not maintainable without the affidavit. Hence, the application fails, and it is dismissed. 9. Be put up for consideration on the aspect of whether the appeal has abated in the whole or in part after one week. (Rakesh Kainthla) Judge 25th May, 2026 (Nikita)