MITHAILAL DALSANGAR SINGH AND ORS.versusANNABAI DEVRAM KINI AND ORS.

A              MITHAILAL DALSANGAR SINGH AND ORS.
                               v.
                  ANNABAi DEVRAM KINI AND ORS.

                             SEPTEMBER 16, 2003

B                  [R.C. LAHOTI AND ASHOK BHAN, JJ.]

         Code of Civil Procedure, 1908 :

        Order 22 Rule 9 sub-rule I-Limitation Act, I963-Section 5-Suit
  for specific performance-Abatement on death of one of the plaintiffs-
C Application by legal representatives for condonation of delay and for
  bringing them on record-Single Judge allowing the application-Division
  Bench of High Court treating abatement of suit in entirety by operation
   of law in absence of a specific prayer by surviving plaintiffs or by legal
  representatives-Correctness of-Held, courts should adopt a justice
D oriented approach and not a technical approach-Prayer for bringing on
  record legal representatives includes impliedly a prayer for setting aside
  abatement-Prayer for setting aside abatement should be construed as a
  prayer for setting aside abatement in entirety-On facts, sufficient cause
  for condonation of delay shown-Hence, abatement of suit set aside.

E        Section I04-0rder 43 Rule I-Order setting aside abatement of
    suit-Letters Patent Appeal from the order-Maintainability of-Held, not
    maintainable since it is not a 'judgment' which affects valuable right of
    the parties.

          Order 22 Rules 3, 4 & 9-Suit abated-Prayer for impleadment of
F   legal heirs may be construed as implying prayer for setting aside abatement-
    Prayer made by a/'1)1 party at a/'1)1 stage of the suit for bringing the legal
    representatives on record enures for benefit of other stages in the suit-
    Other party who should have made the prayer need not again make similar
    application.
G
         Words and phrases- 'Judgment'-An order setting aside abatement
    and bringing LRS on record does not amount to 'judgment' within the
    meaning of Letters Patent,

         Appellant-Plaintiffs filed a suit for specific performance of the
H agreement to sell the suit property entered into by them with respondent-
                                         822
             M. D. SINGH v. ANNABAi DEVRAM KINI                   823
defendants. The ad interim injunction prayed for by the appellants was A
allowed by Single Judge of the High Court. Subsequently, one of the
appellants died. The respondents filed an appeal before Division Bench
of the High Court along with an application for bringing on record the
legal representatives of the deceased appellant.

     The legal representatives of the deceased appellant took out a B
Chamber Summons praying for condonation of delay, for setting aside
abatement and for bringing them on record in the suit in place of the
deceased appellant. The respondents objected to the application on the
ground of limitation and further contended that since, there was only
one cause of action arising to all the three appellants, the suit has C
abated in its entirety on the death of one of the appellants; and that
the prayer of the legal representatives was not maintainable until ~he
other two appellants also made a similar prayer for setting aside
abatement. Single judge of the High Court allowed the prayer of the
legal representatives of the deceased appellant. The respondents filed D
Letters Patent Appeal before the Division Bench of the High Court.

      The Division Bench allowed the appeal of the respondents holding
that the suit filed by the three appellants had abated in its entirety on
the death of one of the appellants and that since no prayer was made
by the two surviving appellants and the legal representatives of the E
deceased appellant for setting aside the abatement in its entirety, the .
suit stood dismissed as having abated. The Division Bench, on the
maintainability of the Letters Patent Appeal, held that the order of
setting aside abatement and bringing on record the legal representatives
of the deceased appellant is a 'judgment' within the meaning of Letters F
Patent. Hence the appeal.

     Allowing the appeals, the Court

      HELD : 1.1. The provision of abatement has to be construed
strictly in as much as the abatement results in denial of hearing on the G
merits of the case. On the other hand, the prayer for setting aside
abatement and the dismissal consequent upon an abatement have to
be construed liberally. A simple prayer for bringing the legal
representatives on record without specifically praying for setting aside
ofan abatement may, in substance, be construed as a prayer for setting H
    824                  SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A 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
B order dism!ssing the suit as abated is not -:ailed 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
C 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. (828-H, 829-A-DJ
D
          1.2. The Courts have to adopt a justice-oriented approach dictated
    by the upper 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
E   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 (1) of Rule (9) of Order 22 CPC
    and of Section S of the Indian Limitation Act, 1963 deserves to be given
F   weight and once arrived at would not normally be interfered with by
    superior jurisdiction. [829-E-F)

          1.3. The Single Judge of the High Court 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,
G   was not open for interference by the Division Bench. The Division
    Bench has not even reversed that finding. 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
H   by the Division Bench to have abated in its entirety by operation of law.
              M. D. SINGH v. ANNABAi DEVRAM KINI                    825
For a period of ninety days from the death of any party the suit A
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 B
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. (829-G-H, 830-A-DI

      1.4. The respondents have themselves moved an application for C
bringing on record the legal representatives of the deceased appellant
along with their appeal against the ad interim injunction passed by the
Single Judge which was pending before the Division Bench. 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 D
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 E
suit in place of the deceased plaintiff. 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 F
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. (830-D-H)

     2. The Letters Patent appeal against the order setting aside the G
abatement of the suit was not maintainable. A persual of Section 104
read with Rule 1 of Order 43 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 H
    826                  SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A 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 the Letters Patent. (831-A, 831-D-E)

B         Shah Babu Lal Khimji v. Behan D. Kangro, AIR (1981) SC 1786,
    relied on.

       Nurul Hoda & Ors. v. Amir Hasan & Anr., AIR (1972) Cal. 449;
  Smt. Chanda Devi v. Municipal Committee, Delhi, AIR (1961) Punjab 424
C and Maria/ Flaviana Almeida & Ors. v. Ramchandra Santuram Asavie &
  Ors., AIR (1938) Bombay 408, referred to.

         CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7396-97
    of 2003.

D       From the Judgment and Order dated 3.4.2002 of the Bombay High
    Court in LP.A No. 448 and 449 of 2001.

        Arun Khosla, Ms. Manisha Singh and M.A. Chinnasamy for the
    Appellants.
E       Vinay Bhasin, Mahesh Jani, Sanjeev Kr. Singh, Pradeep Kr. Malik
    and Bhargava V. Desai for the Respondents.

          The Judgment of the Court was delivered by

F         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
G 1987. The three vendeesjoined 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
H plaintiffs were impleaded as respondents. On 5th April 1997 Bharat Singh,
       M. D. SINGH v. ANNABAI DEVRAM KINI [LAHOTI, J.]                827

one of the plaintiffs expired. The appeal filed by the defendants came up A
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 B
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 C
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 D
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 E
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 -
                                                                            F
         "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 :                                                         G

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

         b)    That abatement of suit with regard to Plaintiff No. 1 be set
               aside;                                                       H
    828                   SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A            c)    That the applicants and Respondent be brought on record in
                   place of and instead of plaintiff No. I 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
B   bringing on record the legal representatives of the deceased plaintiff-
    respondent in that appeal.

          The defendants laid challenge to the order dated 23 .3 .200 I of the
    Learned Single Judge by prefering an intra-court appeal which has been
C   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
D 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
E Learned Single Judge was only for setting aside th~ 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
F 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.
G
          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
H of the case, the provision of abatement has to be construed strictly. On the
       M. D. SINGH v. ANNABAi DEVRAM KINI [LAHOTI, J.]                 829

other hand, the prayer for setting aside an abatement and the dismissal A
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 B
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 oflimitation 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 C
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 D
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 most consideration that ordinarily a litigant ought not to be denied E
an opportunity of having a lis determined on merits un.less 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- F
rule(!) 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 wou Id 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 G
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 H
    830                  SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A 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
B 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
C 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.
D
         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
E 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
F 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
G 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
H point of time, became meaningless.
       M. D. SINGH v. ANNABAi DEVRAM KINI [LAHOTI, J.]                 831

       We are also of the opinion that the Letters Patent appeal against the A
 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 B
 '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 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 C
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 D
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 E
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 F
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 F/aviana Almeida and Ors. v. Ramchandra Santuram
Asavie and Ors., AIR (1938) Bombay 408.
                                                                             G
      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 H
     832                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A merely reopens the controversy.
           A Division Bench of the Punjab High Court, consisting ofD. Faishaw
     and G.L. Chopra, JJ, in Smt. Chanda 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
B    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'.

C         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
D    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
E    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
F 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
G 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 restored.

 H         B.S.                                                  Appeals allowed.