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T.S.THAKUR, GYAN SUDHA MISRA
Mata Prasad Mathur (dead) by LRs. – Appellant
Versus
Jwala Prasad Mathur – Respondent
This legal document discusses the issue of whether a suit abates due to the failure to substitute the legal representatives of a deceased defendant. The key point is that under the relevant procedural rules, courts have the discretion to exempt the plaintiff from the requirement of substitution in certain circumstances, particularly when the defendant was proceeded against ex parte and did not contest the suit. The courts below failed to exercise this discretion, which could have prevented the abatement of the suit. The legislative history indicates that the procedural provisions were introduced to expedite the process and avoid unnecessary delays in litigation. The appellate court emphasized that the procedural exemption, if properly exercised, would have allowed the suit to continue despite the absence of formal substitution of the deceased defendant’s legal representatives. Consequently, the suit should not have been dismissed or considered abated solely on this procedural ground, and the case was remanded for further proceedings on the merits.
Judgment :-
T.S. Thakur, J.
1. Leave granted.
2. The short question that arises for determination in this appeal is whether the suit filed by the plaintiffs-respondents seeking a decree for declaration, partition and injunction against the appellants abated on the failure of the plaintiffs to file an application for substitution of the Legal Representatives of Virendra Kumar one of the defendants. The trial Court, when approached by the plaintiff for deletion of the name of the deceased and setting aside of the abatement, held that the suit had abated in toto and accordingly dismissed the same. In an appeal filed by the plaintiffs against that order, the First Appellate Court held that the trial Court had not properly considered the issue in the light of the nature of the averments made in the plaint and the relief sought by the plaintiff. The Court accordingly set aside the judgment and order passed by the trial Court with the observation that the demise of Virendra Kumar and failure of the plaintiff to bring his legal representatives on record did not affect the maintainability of the suit. The High Court of Madhya Pradesh has affirmed that order, hence the present appeal.
3. Having
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