A request to bring legal representatives on record implicitly includes a request to set aside abatement, allowing courts to adopt a justice-oriented approach in such matters.

Order :

(Deepak Kumar Tiwari, J.)

1. This Revision Petition has been filed against the order dated 10.09.2024 passed by the Civil Judge, Senior Division, Saraipali, District Mahasamund (C.G.), whereby the application preferred under Order 22 rule 3 read with Section 151 of the CPC along with Section 5 of the Limitation Act has been allowed, though no application has been preferred in terms of Order 22 Rule 9 of the CPC for setting aside the abatement.

2. Learned counsel for the applicants submits that original plaintiff-Suruchi has filed the Civil Suit for partition and separate possession. During the pendency of the said Civil Suit, on 02.05.2022, the sole plaintiff died and therefore, the legal representatives of the sole plaintiff have preferred an application under Order 22 Rule 3 read with Section 151 of the CPC along with Section 5 of the Limitation Act, as the application has not been preferred within a period of 90 days after death of the sole plaintiff, so the Suit is abated but no application has been filed in terms of Order 22 Rule 9 of the CPC for setting aside the abatement and without any such application, the trial Court has allowed the aforesaid application and set aside the abatement which is not according to law, therefore, he prays to allow this Revision.

3. Heard learned counsel for the petitioner at length and also perused the documents annexed with the Revision carefully.

4. Order 22 Rule 9 of the CPC deals with the effect of abatement or dismissal. For the sake of brevity, the said provision is reproduced below:-

“9. Effect of abatement or dismissal.- (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.

(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.

(3) The provisions of section 5 of the Indian Limitation Act, 1877 (15 of 1877) Now See The Limitation Act, 1963 (36 of 1963), shall apply to applications under sub-rule (2).”

5. Reading of the aforesaid provision of Order 22 Rule 9(2) of the CPC makes it clear that an application is to be made and not to be filed the word ‘may’ apply shows that the application can be orally made.

6. In the case of Mithailal Dalsangar Singh And Others vs. Annabai Devram Kini And Others , (2003) 10 SCC 691 , the Hon’ble Supreme Court has observed that if the application of delay is available on record then even without filing application under Order 22 Rule 9 of the CPC, the prayer for setting aside can be considered and allowed. The Hon’ble Supreme Court has materially observed at Paras 8 and 9 which read as under:-

“8. Inasmuch 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 prayer 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 the abatement. So also a prayer for setting aside abatement as regards 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 represen