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CASE NO.:

Appeal (civil) 7396-97 of 2003

PETITIONER:

MITHAILAL DALSANGAR SINGH AND ORS.

RESPONDENT:

ANNABAI DEVRAM KINI AND ORS.

DATE OF JUDGMENT: 16/09/2003

BENCH:

R.C. LAHOTI & ASHOK BHAN

JUDGMENT:

JUDGMENT

2003 Supp(3) SCR 822

The Judgment of the Court was delivered by R.C. LAHOTI, J. : Leave granted.

A brief resume of relevant facts would suffice. There was an agreement to

sell relating to the suit property entered into by the owners thereof,

impleaded as defendants in the suit, in favour of three persons namely

Bharat Singh, Mithai Lal Singh and Smt. Nirmala on 29th October 1987. The

three vendees joined as co-plaintiffs and filed a suit for specific

performance of the agreement to sell. There was a prayer for the grant of

ad interim injunction which was allowed by the Learned Single Judge of the

High Court who was trying the suit. As against the order granting ad

interim injuction, the defendants preferred an appeal and therein the three

plaintiffs were impleaded as respondents. On 5th April 1997 Bharat Singh,

one of the plaintiffs expired. The appeal filed by the defendants came up

for hearing before the Division Bench of the High Court. On 17th June,.

2000, which was the date of hearing, a statement appears to have been made

before the High Court that Bharat Singh had expired. The counsel for the

plaintiff-respondents wrote a letter to the two surviving plaintiffs

informing them of the factum of death of the third plaintiff and the need

for taking steps of bringing the legal representatives on record. On 29th

June 2000 the legal representatives of the deceased plaintiff took out

chamber summons on the Original Side of the High Court for being brought on

record in the suit in place of the deceased plaintiff. The defendants in

the suit objected to the prayer for impleadment submitted that the prayer

was hopelessly barred by time and that the suit had abated. It was also

submitting that in as much as the cause of action arising to the three

plaintiffs was only one, the death of one of plaintiffs had resulted in the

suit having abated in its entirety and, therefore, the prayer made by the

legal representatives of the deceased plaintiff for being brought on record

was not maintainable unless and until the other two surviving plaintiffs

had also made a prayer for setting aside the abatement. That having not

been done, the chamber summons at the instance of the legal representatives

of the deceased plaintiff only was not maintainable. The Learned Single

Judge allowed the prayer made by the legal representatives for condonation

of delay in moving the application, set aside the abatement of the suit and

allowed the legal representatives to be brought on record. The Learned

Single Judge held that the legal representative-applicants had duly

established the sufficient cause for condonation of delay in moving the

application and for setting aside the abatement. To quote from the order of

the Learned Single Judge, he held -

"The Chamber Summons is hereby allowed in terms of prayers (a), (b) and c."

Prayers (a), (b) and (c) referred to in the order of the Learned Single

Judge are as under :

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"a) That delay in taking out Chamber Summons be condoned;

b) That abatement of suit with regard to Plaintiff No. 1 be set aside;

c) That the applicants and Respondent be brought on record in place of and

instead of plaintiff No. 1 as per Schedule annexed hereto."

It appears that in the appeal preferred by the defendants pending in the

High Court, the defendant-applicants also moved an application for bringing

on record the legal representatives of the deceased plaintiff-respondent in

that appeal.

The defendants laid challenge to the order dated 23.3.2001 of the Learned

Single Judge by prefering an intra-court appeal which has been allowed and

the order of the Learned Single Judge has been set aside. The result is

that the suit stands dismissed as having abated. The aggrieved plaintiffs

have filed this appeal by special leave.

A perusal of the order of the Division Bench shows that an objection was

taken to the maintainability of the Letters Patent Appeal but the same has

been overruled by the Division Bench forming an opinion that an order

setting aside abatement and bringing on record the legal representative of

the deceased plaintiff amounts to 'judgment' within the meaning of the

Letters Patent. The Division Bench has also held that the prayer made by

the legal representatives of the deceased plaintiff and as allowed by the

Learned Single Judge was only for setting aside the abatement of the suit

as regards the plaintiff no. 1; there was neither a prayer made nor an

order made by the Learned Single Judge setting aside the abatement of the

suit in its entirety, and therefore, so far as the other two surviving

plaintiffs are concerned, for failure on their part to make a prayer for

setting aside the abatement, the suit continues to remain abated as against

them, and therefore, the prayer, as also the order passed on that prayer,

for setting aside that abatement only partly was bad in law and did not

enure to the benefit of the surviving plaintiffs. The findings so arrived

at by the Division Bench have been vehemently attacked by the learned

counsel for the appellants.

Having heard the learned counsel for the parties we are satisfied that the

appeal deserves to be allowed and the judgment of the Division Bench

deserves to be set aside.

In as much 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 abatement. So also a prayer for

setting aside abatement as regard 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 abateed, 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.

The courts have to adopt a justice oriented approach dictated by the upper

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most 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 indulgence of the court. The opinion

of the trial Judge allowing a prayer for setting aside abatement and his

finding on the question of availability of 'sufficient cause' within the

meaning of sub-rule(l) of Rule (9) of Order 22 and of Section 5 of the

Indian Limitation Act, 1963 deserves to be given weight, and once arrived

at would not normally be interfered with by superior jurisdiction.

In the present case, the learned trial judge found sufficient cause for

consideration of delay in moving the application and such finding having

been reasonably arrived at and based on the material available, was not

open for interference by the Division Bench. In fact the Division Bench has

not even reversed that finding; rather the Division Bench has proceeded on

the reasoning that the suit filed by three plaintiffs having abated in its

entirety by reason of the death of one of the plaintiffs, and then the fact

that no prayer was made by the two surviving plaintiffs as also by the

legal representatives of the deceased plaintiff for setting aside of the

abatement in its entirety, the suit could not have been revived, In our

opinion, such an approach adopted by the Division Bench verges on too fine

a technicality and results in injustice being done. There was no order in

writing passed by the court dismissing the entire suit as having abated.

The suit has been treated by the Division Bench to have abated in its

entirety by operation of law. For a period of ninety days from the date of

death of any party the suit remains in a state of suspended animation. And

then it abates. The converse would also logically follow. Once, the prayer

made by the legal representatives of the deceased plaintiff for setting

aside the abatement as regards the deceased plaintiff was allowed, and the

legal representatives of the deceased plaintiff came on record, the

constitution of the suit was rendered good; it revived and the abatement of

the suit would be deemed to have been set aside in its entirety even though

there was no specific prayer made and no specific order of the Court passed

in that behalf.

There is yet another aspect of the matter. As we have already noticed, the

appeal against the order of ad interim injunction passed by the learned

trial Judge and pending before the Division Bench. Therein the defendants

had themselves moved an application for bringing on record the legal

representatives of the deceased plaintiff, that is, the respondent in their

appeal. The legal representatives being brought on record at any stage of

the proceedings enures for the benefit of the entire proceedings. The

prayer made by the defendants in their appeal for bringing on record the

legal representatives of the deceased plaintiff-respondent in appeal was

not opposed by the legal representatives or by any of the co-plaintiffs.

Rather the prayer was virtually conceded to by the legal representatives

themselves moving an application for being brought on record in the suit in

place of the deceased plaintiff. In our opinion, the application made by

the defendant-appellants in the appeal once allowed would have the effect

of bringing the legal representatives on record, not only in the appeal but

also in the suit. All that would remain to be done is the ministerial act

of correcting the index of the parties by the applicants in appeal and then

in the suit. In view of the defendants themselves having sought for

impleadment of the legal representatives in the appeal the delay in moving

the application in the suit by the legal representatives, being subsequent

in point of time, became meaningless. We are also of the opinion that the

Letters Patent appeal against the order setting aside the abatement of the

suit was not maintainable. What is a 'judgment' within the meaning of

Letters Patent came up for the consideration of this court in Shah Babu Lal

Khimji v. Behan D. Kangro, AIR (1981) SC 1786. It was held that a decision

by a trial judge on a controversy which affects valuable rights of one of

the parties is a 'judgment'. However, an interlocutory order cannot be

regarded as a judgment but only those orders would be judgments which

decide matters of moment or affect vital and valuable rights of the

parties, and which work serious in justice to the party concerned. This

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court further held that there is no inconsistency between Section 104 read

with Order 43 Rule 1 of the CPC and the appeals under the Letters Patent.

The Letters Patent do not exclude or override the application of Section

104 read with Order 43 Rule 1 CPC to internal appeals within the High

Court. Even if it is assumed that Order 43 Rule 1 does not apply to Letters

Patent appeals yet the principles governing those provisions would apply by

a process of analogy. A perusal of Section 104 read with Rule 1 of Order 43

of the CPC shows that while an appeal is provided against an order refusing

to set aside the abatement or dismissal of a suit; there is no appeal

provided against an order whereby the abatement or dismissal of a suit has

been set aside. Whether the trial judge passed an order setting aside an

abatement or allowed substitution of the legal representatives, no valuable

right of parties was decided. The constitution of the suit was rendered

good and the suit proceeded ahead for being tried on merits. Such an order

does not amount to 'judgment' within the meaning of Letters Patent.

The learned counsel for the appellant has invited attention of the Court to

the Full Bench decision of the Calcutta High Court in Nurul Hoda and Ors.

v. Amir Hasan and Anr., AIR (1972) Cal. 449 and the Division Bench

decisions of the Punjab High Court in Smt. Chando Devi v. Municipal

Committee, Delhi, AIR (1961) Punjab 424 and of the Bombay High Court in

Maria Flaviana Almeida and Ors. v. Ramchandra Santuram Asavie and Ors., AIR

(1938) Bombay 408.

In Nurul Hoda & Ors. (supra), Sabyasachi Mukharji, J. (as His Lordship then

was), speaking for the Full Bench, held that a decision setting aside an

abatement does not in any way effect any right accrued to the defendant

and, therefore, does not amount to a 'judgment'. No merits, in the

controversy between the parties, have been decided; the order merely

reopens the controversy.

A Division Bench of the Punjab High Court, consisting of D. Faishaw and

G.L. Chopra, JJ, in Smt. Chando Devi's case (supra) has held that the order

setting aside the abatement of a suit or appeal is not a decision which

affects the merits of the question between the parties by determining some

right or liability in the suit. Such an order cannot be regarded as a

deciding a question materially in issue between the parties and directly

affecting the subject matter of the suit and, therefore, it would not

amount to a 'judgment'.

In Maria Flaviana Almeida & Ors. 's case (supra), Chief Justice Beaumont

speaking for the Division Bench observed that an order setting aside an

abatement is really one in procedure. The party originally had a cause of

action which through no fault of their own came to an end by the death of

their opponent and the effect of setting aside the abatement is merely to

excuse delay in restoring the suit to an actionable condition. The Division

Bench held that the order setting aside an abatement does not effect the

merits of the dispute between the parties though it certainly determines a

right and, therefore, does not amount to a 'judgment'.

We find ourselves in agreement with the view so taken by the High Courts.

The Calcutta and Bombay decisions were cited in the High Court also. In its

impugned judgment the Division Bench has opined that the two rulings had no

applicability to be the case at hand. As to the Calcutta decision the

impugned judgment states that it was a simple case of setting aside

abatement while in the present case on account of the inaction of the

plaintiffs nos. 2 and 3 in seeking setting aside of the abatement qua them

the suit had abated as a whole, depriving the court of its jurisdiction to

set aside the abatement as against deceased plaintiff only . We cannot

countenance the narrow technical view so taken by the Division Bench for

the reasons already stated.

The appeals are allowed. The judgment of the Division Bench is set aside.

Instead the order dated 29.3.2001 passed by Learned Single Judge is

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restored.