Back
2003(6) Supreme 796
SUPREME COURT OF INDIA
(From Bombay High Court)
R.C. Lahoti and Ashok Bhan, JJ.
Mithailal Dalsangar Singh and Ors. -Appellants
versus
Annabai Devram Kini and Ors. -Respondents
Civil Appeal Nos. 7396-97 of 2003
With
[@ S.L.P. (C) Nos. 17349-17350 of 2002]
Decided on 16-9-2003
Counsel for the Parties :
For the Appellants : Arun Khosla, Ms. Manisha Singh and M.A. Chinnasamy, Adovcates.
For the Respondents : Vinay Bhasin, Sr. Advocate, Mahesh Jani, Sanjeev Kr. Singh, Pradeep Kr. Malik and Bhargava V. Desai, Advocates.
Held : In as much 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 payer 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 abatement. So also a prayer for setting aside abatement as regard 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. The courts have to adopt a justice oriented approach dictated by the upper most 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 (1) of Rule (9) of Order 22 and of Section 5 of the Indian Limitation Act 1963 deserves to be given weight, and once arrived at would not normally be interfered with by superior jurisdiction. In the present case, the learned trial judge found sufficient cause for condonation of delay in moving the application and such finding having been reasonably arrived at and based on the material available, was not open for interference by the Division Bench. In fact the Division Bench has not even reversed that finding; rather the Division Bench has proceeded on the reasoning that the suit filed by three plaintiffs having abated in its entirety by reason of the death of one of the plaintiffs, and then the fact that no prayer was made by the two surviving plaintiffs as also by the legal representatives of the deceased plaintiff for setting aside of the abatement in its entirety, the suit could not have been revived. In our opinion, 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. (Paras 8 to 10)
In our opinion, the application made by the defendant-appellants in the appeal once allowed would have the effect of bringing the legal representatives on recorded, not only in the appeal but also in the suit. All that would remain to be done is the ministerial act of correcting the index of the parties by the applicants in appeal and then in the suit. In view of the defendants themselves having sought for impleadment of the legal representatives in the appeal the delay in moving the application in the suit by the legal representatives, being subsequent in point of time, became meaningless. (Para 11)
(ii) LETTERS PATENT APPEAL-Civil Procedure Code, 1908-Section 104 r/w Order 43 Rule 1-Letters Patent Appeal against order setting aside abatement of suit-Whether maintainable-(No)-Such an order does not amount to judgment within the meaning of Letters Patent-There is no inconsistency between Section 104 r/w Order 43 Rule 1 of <a href=act:10444>CPC and appeals under the Letters Patent.
Held : The Letters Patent do not exclude or override the application of Section 104 read with Order 43 Rule 1 CPC to internal appeals within the High Court. Even if it is assumed that Order 43 Rule 1 does not apply to Letters Patent appeals yet the principles governing those provisions would apply by a process of analogy. A perusal of Section 104 read with Rule 1 of Order 43 of the CPC shows that while an appeal is provided against an order refusing to set aside the abatement or dismissal of a suit; there is no appeal provided against an order whereby the abatement or dismissal of a suit has been set aside. Whether the trial judge passed an order setting aside an abatement or allowed substitution of the legal representatives, no valuable right of parties was decided. The constitution of the suit was rendered good and the suit proceeded ahead for being tried on merits. Such an order does not amount to judgment within the meaning of Letters Patent. (Para 12)
Key Points: - A simple prayer for bringing legal representatives on record can be construed in substance as a prayer for setting aside abatement, and such a prayer regarding one plaintiff can be treated as setting aside the abatement of the suit in its entirety (!) (!) (!) . - When legal representatives of a deceased plaintiff are brought on record, the constitution of the suit is rendered good, reviving the suit and deeming the abatement set aside in its entirety, even without a specific prayer or order for the whole suit (!) (!) . - The trial judge's finding on sufficient cause for condoning delay under Order 22 Rule 9(1) and Section 5 of the Limitation Act deserves weight and should not be interfered with by superior jurisdiction unless based on gross negligence or misconduct (!) (!) . - An order setting aside abatement does not amount to a judgment within the meaning of the Letters Patent as it does not decide any valuable right or liability on merits but merely restores the suit for trial (!) (!) (!) . - The Division Bench's approach of holding that the suit could not be revived without a prayer from all surviving plaintiffs and the deceased's representatives for setting aside abatement in its entirety is too technical and results in injustice (!) (!) . - If the defendants themselves move to bring legal representatives on record in an appeal, the delay in moving the application in the suit becomes meaningless, and the impleadment benefits the entire proceedings (!) . - The appeals were allowed, the Division Bench's judgment was set aside, and the order of the Learned Single Judge restoring the suit was restored (!) (!) .
JUDGMENT
R.C. Lahoti, J.-Leave granted.
2. A brief resume of relevant facts would suffice. There was an agreement to sell relating to the suit property entered into by the owners thereof, impleaded as defendants in the suit, in favour of three persons namely Bharat Singh, Mathai Lal Singh and Smt. Nirmala on 29th October 1987. The three vendees joined as co-plaintiffs and filed a suit for specific performance of the agreement to sell. There was a prayer for the grant of ad interim injunction which was allowed by the Learned Single Judge of the High Court who was trying the suit. As against the order granting ad interim injunction, the defendants preferred an appeal and therein the three plaintiffs were impleaded as respondents. On 5th April 1997 Bharat Singh, one of the plaintiffs expired. The appeal filed by the defendants came up for hearing before the Division Bench of the High Court. On 17th June, 2000, which was the date of hearing, a statement appears to have been made before the High Court that Bharat Singh had expired. The counsel for the plaintiff-respondents wrote a letter to the two surviving plaintiffs informing them of the factum of death of the third plaintiff and the need for taking steps for bringing the legal representatives on record. On 29th June 2000 the legal representatives of the deceased plaintiff took out chamber summons on the Original Side of the High Court for being brought on record in the suit in place of the deceased plaintiff. The defendants in the suit objected to the prayer for impleadment submitted that the prayer was hopelessly barred by time and that the suit had abated. It was also submitted that in as much as the cause of action arising to the three plaintiffs was only one, the death of one of plaintiffs had resulted in the suit having abated in its entirety and, therefore, the prayer made by the legal representatives of the deceased plaintiff for being brought on record was not maintainable unless and until the other two surviving plaintiffs had also made a prayer for setting aside the abatement. That having not been done, the chamber summons at the instance of the legal representatives of the deceased plaintiff only was not maintainable. The Learned Single Judge allowed the prayer made by the legal representatives for condonation of delay in moving the application, set aside the abatement of the suit and allowed the legal representatives to be brought on record. The Learned Single Judge held that the legal representative-applicants had duly established the sufficient cause for condonation of delay in moving the application and for setting aside the abatement. To quote from the order of the Learned Single Judge, he held -
"The chamber summons is hereby allowed in terms of prayers (a), (b) and (c)."
3. Prayers (a), (b) and (c) referred to in the order of the learned Single Judge are as under:-
(a) That delay in taking out Chamber Summons be condoned;
(b) That abatement of suit with regard to Plaintiff No.1 be set aside;
(c) That the applicants and Respondent be brought on record in place of and instead of Plaintiff No.1 as per Schedule annexed hereto."
4. It appears that in the appeal preferred by the defendants pending in the High Court, the defendant-applicants also moved an application for bringing on record the legal representatives of the deceased plaintiff-respondent in that appeal.
5. The defendants laid challenge to the order dated 23.3.2001 of the Learned Single Judge by preferring an intra-court appeal which has been allowed and the order of the Learned Single Judge has been set aside. The result is that the suit stands dismissed as having abated. The aggrieved plaintiffs have filed this appeal by special leave.
6. A perusal of the order of the Division Bench shows that an objection was taken to the maintainability of the Letters Patent Appeal but the same has been overruled by the Division Bench forming an opinion that an order setti
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
