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CASE NO.: Appeal (civil)  3807 of 2007

PETITIONER: Ramdas Shivram Sattur

RESPONDENT: Rameshchandra Popatlal Shah & Ors

DATE OF JUDGMENT: 20/08/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T  

CIVIL  APPEAL NO. 3807 OF 2007 (Arising out of SLP (C) No.10085 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by a  learned Single Judge of the Bombay High Court in the Second  Appeal filed by the appellant; the defendant no.3 in Special  Civil Suit No. 42 of 1981; before the High Court under Section  100 of the Code of Civil Procedure, 1908 (in short \021CPC\022).   During pendecny of the appeal, an application was filed in  terms of Order XLI Rule 19 of the CPC for setting aside the  order dated 20.3.1987 passed by the learned Additional  Registrar whereby he dismissed the second appeal against  respondent nos.3 and 6 for non-prosecution. The prayer was  also made to show the names of the applicant i.e. present  appellant and respondent nos.5 to 7 in the second appeal as  legal representatives of the deceased-respondent No.3. By the  impugned order the High Court while accepting the prayer vis- ‘-vis respondent no.6 dismissed the same so far as  respondent No.3 is concerned.            

3.      A brief reference to the factual aspects would be  necessary:

       The suit plot was owned by one Shivram i.e. the father of  the appellant and respondent no.3. Name of respondent no.3  Tarabai was shown as nominee in the Cooperative Housing  Society\022s record. After the death of Shivram the suit plot was  transferred in the name of Tarabai. She purportedly entered  into an agreement to sale with original plaintiffs 1 and 2 i.e.  the present respondents 1 and 2. As Tarabai did not execute  the sale deed in pursuance of the said sale agreement, the  plaintiffs filed the suit against Tarabai and her three sons and  one daughter i.e. original defendants 3 to 6. The Cooperative  Society was also impleaded as defendant no.2. Tarabai filed  written statement and denied claim of the plaintiffs. Defendant  no.3 i.e. appellant denied the suit claim and contended that  Tarabai was, as stated in the written statement, only a  nominee and no exclusive ownership right was vested in her.  The trial court came to the conclusion that Tarabai had  executed the agreement of sale and she committed breach in  collusion with the other defendants. Therefore, the defendants

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1 and 3 were directed to execute the sale deed in favour of the  plaintiff.

       Being aggrieved by the said order, Tarabai as well as the  present appellant and the Cooperative Society filed Civil  Appeal No.772 of 1984. However, the appeal was dismissed  and trial Court\022s decree was confirmed. Being aggrieved, the  appellant filed the Second Appeal against the original  plaintiffs, Cooperative Society and the respondents 3 to 7 i.e.  defendants 1 to 4, 5 and 6. The said appeal was admitted by  the High Court on 20.6.1986 and stay on the lower court\022s  decree was granted.   

4.      It appears from the record that respondents 1, 2 and 4  were served personally while respondent no.3 was served by  affixing the notice with bailiff remarks \023gone on duty\024. Notice  to the respondent no.6 was also returned unserved with  remarks \023incomplete address\024. The High Court noticed that in  terms of the provisions of Rule 6(id) of Chapter 7 of Bombay  High Court Appeal Rules, 1960, the appellant was required to  give postal stamps within the stipulated period. That was not  done. The Additional Registrar dismissed the appeal in respect  of Tarabai (respondent No.3 in the Second Appeal) and  respondent no.6 for want of prosecution by order dated  20.3.1987. It also appears that the appeal was dismissed for  non-removal of objections. An application for restoration was  filed and the appeal was restored on 6.4.1999 by setting aside  the order dated 10.11.1997. At that time the appellant made a  statement that Second Appeal has abated against respondents  5 and 7 and he was pressing civil application for restoration  only against respondent nos.1 and 2. It was accordingly  restored.         5.      Subsequently, it appears that the advocate who was  earlier appearing left the practice. When another advocate  appeared, she found that record was not traceable and  ultimately an application was filed before the High Court in  respect of respondents 3 and 6 and restoration was prayed for  in respect of the said respondents.                          

6.      The prayer for restoration was resisted by the present  respondents 1 and 2. The High Court found that the  application was to be allowed in respect of respondent no.6  but no case was made for restoration in respect of respondent  no.3. Accordingly the application was partly allowed.

7.      In support of the appeal, learned counsel for the  respondent submitted that the High Court\022s approach is  clearly erroneous. The position was the same for both  respondents 3 and 6. It was pointed out that mistake  committed by the previous advocate was noticed in respect of  respondents 5 and 7. It was noted that there was no dispute  that respondent No.5, 6 and 7 along with present appellant  are the only legal heirs of respondent no.3 who passed away  during the pendency of the appeal, therefore, dismissal order  in respect of respondents 5 and 7 was set aside subject to  payment of cost of Rs.5,000/-.

8.      Learned counsel for the respondent nos.1 and 2  submitted that there has been long delay so far as the case  relating to respondent no.3 is concerned. The position is  different for respondent no.3 and respondent no.6.  Merely  because in respect of respondent no.6 the application has  been allowed that cannot be a ground for restoration of the

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appeal so far as respondent No.3 is concerned.

9.      Since respondent No.3 has died, question of her being  brought on record does not arise.  As was noted by the High  Court in its order dated 23 March, 2004, in civil application  1361/2002, the appellant and respondents 5, 6 and 7 are the  only legal heirs of respondent No.3. The order dated 23rd  March 2004, has become final, and respondents 5 and 7 are  already on record. By the impugned order also the High Court  has directed restoration of the appeal so far as respondent no.  6 is concerned.

10.     The approach to be adopted when dealing with a  situation relating to abatement has been dealt with by this  Court in several cases.

11.     In Ram Sakal Singh v. Mosamat Monako Devi (Dead) and  Ors. (1997 (5) SCC 192). It was observed as follows:

\02313. Shri Ranjit Kumar, obviously due to  mistaken perception of the procedural part,  has, instead of seeking transposition of the  legal representatives to represent the estate of  the deceased Respondents 8 to 15, sought  deletion of the names of the deceased.   Without there being already on record some  persons eligible and entitled in law to  represent the estate of the deceased, the  deceased defendants/respondents were  deleted.  The consequence of deletion is that  the decree of the courts below as against the  deceased becomes final. If the decree is  inseparable and the rights of the parties are  indivisible between the contesting parties and  the deceased, the consequence would be that  the suit/appeal stands abated as a whole.  But  if one of the respondent/respondents or  defendant/defendants is already on record,  what needs to be done is an intimation to the  court by filing a formal application or memo to  transpose the existing defendant/defendants  or respondent/respondents as legal  representatives of the deceased  defendant/defendants or  respondent/respondents. In view of the  mistake committed by the counsel, the court  has to consider the effect thereof.  On the  facts, we think that cause of justice would get  advanced if the misconception as to the  procedure on the part of the counsel is  condoned and if Respondents 8 and 15 instead  of being deleted Respondents 9 and 10 are  substituted and transposed as the legal  representative of the deceased Respondent 8  and Respondent 16 is transposed as legal  representative of Respondent 15.\024                   

12.     In Mithailal Dalsangar Singh ands Ors. v. Annabi  Devram Kini and Ors. (2003 (10) SCC 691), inter alia, it was  observed as follows:       \0238. 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

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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 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 \023sufficient cause\024  within the meaning of sub-rule (2) of Rule 9 of  Order 22 and of Section 5 of the Limitation  Act, 1963 deserves to be given weight, and  once arrived at would not normally be  interfered with by superior jurisdiction.

10. In the present case, the learned trial Judge  found sufficient cause for condonation 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

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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 entirely even though there was no  specific prayer made and no specific order of  the court passed in that behalf.\024        

13.     In view of the factual position noticed above, High Court  was not justified in refusing application for restoration so far  as respondent no.3 is concerned. But she is dead and her legal  representatives are already on record i.e. appellant and  respondents 5, 6 and 7. The appeal shall not abate so far as  respondent No. 3 is concerned.         14.     The appeal is allowed without any order as to costs.