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R.C.LAHOTI, ASHOK BHAN
Mithailal Dalsangar Singh – Appellant
Versus
Annabai Devram Kini – Respondent
How to determine if a prayer for bringing legal representatives on record without specifically praying for setting aside abatement is sufficient? What is the effect of allowing a prayer for setting aside abatement regarding one plaintiff on the abatement of the suit in its entirety? Is an order setting aside the abatement of a suit considered a "judgment" within the meaning of the Letters Patent?
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
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