Shivram Sattur Vs. Rameshchandra Popatlal Shah & Ors  Insc 842 (20 August 2007)
Arijit Pasayat & D.K. Jain
APPEAL NO. 3807 OF 2007 (Arising out of SLP (C) No.10085 of 2006) Dr. ARIJIT
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
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.
brief reference to the factual aspects would be necessary:
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 Societys 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.
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 1 and 3 were directed to execute the sale deed in favour
of the plaintiff.
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 Courts 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 courts decree was granted.
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
gone on duty. Notice to the respondent no.6 was also returned unserved
with remarks incomplete address. 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
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
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.
support of the appeal, learned counsel for the respondent submitted that the
High Courts 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/-.
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 appeal so far as respondent No.3 is concerned.
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.
The approach to be adopted when dealing with a situation relating to abatement
has been dealt with by this Court in several cases.
Ram Sakal Singh v. Mosamat Monako Devi (Dead) and Ors. (1997 (5) SCC 192). It
was observed as follows:
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
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.
Mithailal Dalsangar Singh ands Ors. v. Annabi Devram Kini and Ors. (2003 (10)
SCC 691), inter alia, it was observed as follows:
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.
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 sufficient cause 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
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 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
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.
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.
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.
The appeal is allowed without any order as to costs.