IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE DEEPAK KHOT

th

ON THE 20 OF JANUARY, 2026 MISC. CIVIL CASE No. 1398 of 2024 TILKHO AND OTHERS Versus BAISAKHOO (DIED ON 17.04.2021) THROUGH LR/S SHRI RAMESH MAHOBE (CHAMAR) AND OTHERS Appearance:

Shri Anil Vishwakarma - Advocate for the applicants.

Shri Monish Raghuwanshhi - Advocate for the respondent Nos. 1 to

4.

Shri Somesh Gupta - Panel Lawyer for the respondent/State.

ORDER Heard on IA No. 7461/2024, an application for condonation of delay in filing the MCC.

2. It has been submitted by the learned counsel for the applicants that the second appeal has been dismissed as abated due to death of respondent No.1, which has been reported to be occurred on 30.11.2023.

3. It has been submitted that the death of respondent No.1 occurred on

17th April, 2021, but, as the information was not available and due to wrong information, such date has been reported. It is further submitted that the applicants are not the residents of the same village and therefore, they were not aware of the fact of death of respondent No.1 and L.Rs. of the respondent No.1 and on dismissal of the second appeal as abated, the applicants have made efforts to find out the details of the L.Rs. of respondent No.1 and on finding their details, the application has been filed.

4. Considering the submissions and for the reasons mentioned the application, IA No. 7461/2024 is allowed subject to payment of cost of Rs.2000/- to be deposited with the State Legal Services Authority, Jabalpur within seven days from today. The delay in filing the application is condoned.

5. Counsel for the applicants submits that the cause to be prosecuted survives with the legal representatives of respondent No.1.

6. The Hon'ble Apex Court in the case of Om Prakash Gupta alias Lalloowea (now deceased) and others vs. Satish Chandra (now deceased) and others reported in 2025 SCC OnLine SC 291 has held as under:-

23. We find it difficult to agree with such reasoning. When an application praying for substitution had been made, then, even assuming that it does not have an explicit prayer for setting aside the abatement, such prayer could be read as inherent in the prayer for substitution in the interest of justice. We draw inspiration for such a conclusion, having read the decision in Mithailal Dalsangar

35 Singh v. Annabai Devram Kini . This Court reiterated the need for a justice-oriented approach in such matters. Inter alia, it was held that prayer to bring on record heir(s)/legal representative(s) can also be construed as a prayer for setting aside the abatement.

The relevant passage reads 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 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