The automatic abatement of a suit due to plaintiff's death may be set aside through a substitution petition, which courts should interpret liberally to ensure justice.

JUDGMENT :

1. Heard the learned counsel for the petitioner as well as the learned counsel for the Opposite party nos. 1, 2 and 3.

2. This petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 09.06.2023 passed in Original Suit No.81 of 2017 wherein the petition filed by the petitioner/defendant for abating the suit as the plaintiff no.1 namely Dwarika Prasad Sah died on 30.11.2018 and has not been substituted even after five years but the learned court has been pleased to allow the substitution petition.

3. The learned counsel for the petitioner submits that the Original Suit No.81 of 2017 was instituted for distribution of money among the co-sharer. He further submits that plaintiff no.1 died on 13.11.2018 and plaintiff no.5 died on 05.12.2017 and they were not substituted and subsequently, the petition dated 25.4.2023 has been filed for substituting the name of legal heirs/successors of plaintiff nos.1 and 5 which has been allowed by the learned court by the order dated 09.06.2023. He submits that in this background, the petitioner who is defendant in the suit, has filed a petition for declaring that the suit has already been abated so far as the plaintiff no.1 and 5 are concerned and the learned court has erroneously rejected the same.

4. On the other hand, Mr. Rajiv Nandan Prasad, the learned counsel appearing on behalf of the Opposite parties submits that the learned court has already allowed the substitution petition and pursuant to that, the plaintiff no.1 has already been substituted and the plaintiff no.5’s legal heirs/successors were already on the record and in view of that, the plaintiff no.5 was deleted from the record the legal heirs/ successors of the plaintiff nos.1 and 5 have already been substituted in the said suit. He submits that the substituted legal heirs/ successors of plaintiff no.1 have not been made Opposite party in the present CMP although, in the trial court they have already been substituted. He further submits that the learned court looking to the entire petition of substitution has been pleased to allow the same and if such a situation is there, there is no illegality in the order. He submits that there is no need of passing any order on the abatement is concerned and the abatement is automatic. He submits that once a petition is already allowed, the higher court is not required to interfere with as the justice-oriented approach is required to be adopted by the courts. He relied in the case of Mithailal Dalsangar Singh and Others v. Annabai Devram Kini and Others , (2003) 10 SCC 691 and he refers to paragraph nos.8 and 9 of the said judgment which is given below:

“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 representatives proposing to be b