[2025:RJ-JP:41553] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Miscellaneous Application No. 16/2025 Mohan Lal S/o Shri Durga Shankar, Aged About 40 Years, R/o Chouth Ka Barwada, District Sawai Madhopr, Rajasthan (Since Deceased) Through His Legal Heirs. 1. Smt. Yashoda Bai Widow Of Late Shri Mohan Lal Aged About 82 Years, R/o Brahmpuri, Opposite Mouri Hanuman, Purani Dhan Mandi, Kota. 2. Sumitra Devi W/o Shri Mahendra Sharma D/o Late Shri Mohan Lal, R/o Khilchipur, Sawaimadhopur ----Petitioner Versus Shashi Sekhar Dave (Died) S/o Shri Chander Shekhar Dave, R/o Chouth Ka Barwada, District Sawaimadhopur And New Address Plot No. 544, Sector No.1, Malviya Nagar, Jaipur Legal heirs: 1/1 Abhishek Dave 1/2 Anurag Dave ----Respondent For Petitioner(s) : Mr. B.R. Meena For Respondent(s) : None HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 26/09/2025 1. The civil second appeal No. 77/2014 is filed by Mohan Lal (since deceased) aggrieved from judgment dated 28.07.2010 in civil regular appeal No. 01/2001 passed by learned District Judge, Sawaimadhopur but during pendency of second appeal, following order is passed by this Court on 18.11.2024: “On 05.07.2024, it was noticed that sole respondent has expired. Learned counsel for [2025:RJ-JP:41553] (2 of 3) [CMAP-16/2025] respondent has informed the Court that he is not having any details about the legal heirs of respondent-plaintiff. Learned counsel for appellant submits that a proper opportunity be granted to him so as to file appropriate application. We have considered the submissions of learned counsel for appellant. Once fact of death was recorded by this Court on 05.07.2024 then within 90 days any application either for substitution or for discovery of heirs was required to be filed by the appellant in order to continue to pursue the present appeal but herein neither any application for substitution nor for discovery was filed by appellant and on death of sole respondent-plaintiff, the appeal cannot continue beyond the period of 90 days as same abates by operation of law. The only option lies with appellant is to move for setting aside of abatement and also for substitution. In view of aforesaid, the appeal stands abated. Hence, same is dismissed in abatement. Misc. application(s), if any, stands disposed of.” 2. Afterwards Application Nos. 291/2025, 01/20024 and 02/2024 were filed for setting aside of abatement and also for substitution of legal heirs. 3. After service upon legal heirs of deceased respondent, no one has appeared before this Court, the court has noticed that non-applicants Abhishek and Anurag have chosen not to appear despite service of notice. [2025:RJ-JP:41553] (3 of 3) [CMAP-16/2025] 4. We have considered the bonafides and also the grounds as raised by learned counsel for appellants. 5. In case of Dinesh Kumar and Anr. Vs. Shiv Taj Singh and Ors. (S.B. Civil First Appeal No. 289/2001 order dated 16.11.2022), this Court has considered the ground of substitution, abatement and also procedure during pendency of appeal before High Court where no specific dates were assigned and working is different than the trial court. 6. Having considered the totality of facts and circumstances of the case, and in the interest of justice, it is appropriate to allow these applications subject to payment of cost of ₹5,000/-. 7. As a result, aforesaid applications are allowed subject to payment of cost of ₹5000/- and order of abatement dated 18.11.2024 is set aside and S.B. Civil Second Appeal No. 77/2014 is restored to its original number. The application for substitution is allowed after condonation of delay and LRs Abhishek and Anurag are substituted in place of deceased respondent Shashi Shekhar Dave. 8. Amended cause title be filed in appeal. 9. After registration of appeal on its original number, list the matter before appropriate roster. (ASHOK KUMAR JAIN),J PREETI VALECHA /34