A justice-oriented approach should be adopted in abatement matters; a prayer for substitution of legal representatives can be construed as an inherent prayer for setting aside abatement to ensure cases are decided on merits rather than technicalities.

ORDER

Present application has been filed under caption "Restoration", however, in sum and substance, the application has been filed for setting aside abatement of First Appeal No.946/2012, which has been dismissed as abated.

It is submitted by counsel for the applicant that in first appeal, application for setting aside abatement, condonation of delay and substitution of LRs were allowed and time was granted to correct the cause-title, however, the applicant could not correct the cause-title within stipulated time and the appeal was dismissed as abated. It is submitted that two applications for setting aside abatement are not permissible. Abatement has already been set-aside but correction could not be carried out in the cause-title, therefore, present application may be treated as an application for setting aside abatement of appeal.

Counsel for the respondent has objected the prayer and submitted that the application cannot be allowed, at this stage, because the appeal has been dismissed as abated.

Considering the submissions of the parties and on perusal of the order sheet of the first appellate Court, this Court is of the considered opinion that the application in sum and substance is for setting aside abatement.

The Hon'ble Apex Court in the case of Om Prakash Gupta v. Satish Chandra , 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 Singh v. Annabai Devram Kini³⁵. 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 as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for.

9. The courts have to adopt a justice-oriented approach dictated by the uppermost consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the