IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR SA No. 233 of 2003 (CHHOTELAL & ANR. Vs KARAN SINGH & ORS. )

Dated :09-02-2026 Shri Jai Prakash Mishra - Advocate for LRs of appellant.

Shri Gurudutt Sharma - Advocate for respondents.

Heard on I.A. No. 6959/2024, an application under Order 22 Rules 3 and 9 of the CPC, and I.A. No. 6953/2024, an application under Section 5 of the Limitation Act.

It is submitted by counsel for appellant that during the pendency of the appeal, appellant No.1, Chhotelal, died on 30.06.2020 and appellant No.2 died on 15.01.2016. The wife of appellant No. 1, Laxmi Devi, died on 18.07.2023 and Smt. Parvati Devi, the wife of appellant No. 2, died on 29.07.2012. The deceased appellants No.1 and 2 left behind the LRs as mentioned in I.A. No. 6959/2024 in Paras 2 and 3. It is submitted that proposed LRs of the appellants are poor persons and were not aware of the provisions of law. They were not known to the fact of the pendency of the appeal. When they came to know, the contact was made with counsel for appellants and it was informed that the appeal is pending, and thereafter necessary steps have been taken to implead the LRs of appellants No.1 and 2 and for setting aside the abatement.

Counsel for the respondents has opposed the prayer on the ground that the delay caused in filing the application has not been explained.

However, it is the settled principle of law that once the LRs of the deceased party wishes to prosecute the matter on merits and the application is filed, then the Court should take a lenient view in allowing the such application.

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 t