MOHATTA BROS. v. CHATURBHAIDAS CHIMANLAL — 1981 DIGILAW 70 (GUJ)

A. M. AHMADI, J. ( 1 ) THE appellants Messrs Mohatta Brothers a partnership firm filed three suits being Civil Suits Nos. 106 of 1961 314 of 1961 and 33 of 1963 in the City Civil Court at Ahmedabad against the respon- dents for diverse reliefs. In Suit No. 106 of 1961 it was prayed that if the Court comes to the conclusion that the relationship between the plaintiff and the defendants was that of partners the Court should dissolve the firm of Messrs Chhaturbhuj Kharavala Mohatta and Company and order accounts to be taken. A similar relief was claimed in Civil Suit No. 33 of 1963 also. In Suit No. 314 of 1961 also the relief claimed was for the dissolution of the said partnership firm and for a share in the managing agency commission and for rendition of accounts. All these three suits were stayed under sec. 10 read with sec. 151 of the Code of Civil Procedure in view of the pendency of First Appeal No. 984 of 1960 in the High Court arising out of the dismissal of Civil Suit No. 205 of 1954. The said First Appeal came to be dismissed by this Court on 14/10/1976. It therefore appears that the aforesaid three suits were stayed from 1963 and onwards till the disposal of the appeal by the High Court on 14/10/1976. ( 2 ) IT appears that while the suits were so stayed one of the defen- dants Sheth Bhagwandas Tejaji Kharawala expired on 28/03/1974. He was also a party to the First Appeal No. 984 of 1960 pending in the High Court. It appears that Shri Rasiklal Mehta the power-of- attorney-holder of the plaintiffs in the aforesaid appeal made an appli- cation in the High Court for bringing on record the legal representatives of deceased Bhagwandas Tejaji Kharawala on the allegation that he learnt about his demise for the first time somewhere in the first week of October 1974. He therefore prayed that the delay in filing the application should be condoned the abatement should be set aside and the legal representatives of Bhagwandas Tejaji Kharawala should be brought on record in the Appeal which was then pending before the High Court. It is common ground that the High Court allowed that application and there- upon the legal representatives of the deceased were brought on record. It is common ground that the High Court allowed that application and there- upon the legal representatives of the deceased were brought on record. Almost two years thereafter the appeal was disposed of by the High Court on 14/10/1976. ( 3 ) SO far as the three suits which were pending in the City Civil Court are concerned as stated earlier they were stayed under sec. 10 read with sec. 151 of the Code of Civil Procedure as the First Appeal No. 984 of 1960 arising out of the dismissal of Civil Suit No. 205 of 1954 was pending in the High Court. During the subsistence of the stay Shri Rasiklal Mehta the power-of-attorney-holder of the plaintiffs in the said three suits filed an application on 29/11/1974 in Civil Suit No. 314 of 1961 and on 2/12/1974 in the other two Civil Suits for bringing the legal representatives of deceased Bhagwandas on record. In the said three suits he also filed separate applications for condon- ation of delay under sec 5 of the Limitation Act 1963 read with Order 22 Rule 9 (3) of the Code of Civil Procedure. In the said three applications he stated that he learnt about the death of Bhagwandas for the first time on 28/11/1974 when a Purshis giving intimation about his death came to be filed in Suit No. 314 of 1961 by the learned advocate representing the deceased. It is clear from the above undisputed facts that even though the defendant Bhagwandas died on 28/03/1974 the applications for bringing his legal representatives on record were not made till 29/11/1974 in Suit No. 314 of 1961 and on 2/12/1974 in the other two suits. Thus all the three applications for bringing the legal representatives of the deceased on record were filed after a lapse of ninety days from the date of demise and also after a lapse of further sixty days during which period an application for setting aside the abatement should have been made under Order 22 Rule 9 (2) of the Code of Civil Procedure on the ground that intimation about the death was first received on 28/11/1974 on the filing of the Purshis in Civil Suit No. 314 of 1961 by the learned advocate representing the deceased in the aforesaid three suits. ( 4 ) THESE applications for setting aside the abatement after condon- ing the delay and for bringing the legal representatives of deceased Bhagwandas on record were hotly contested by defendant No. 1 Sheth Chhaturbhujdas Chimanlal mainly on the ground that no such purshis giving intimation about the demise of Bhagwandas was filed in Civil Suit No. 314 of 1961 on 28/11/1974 and that the state- ment of the deponent Rasiklal Mehta that he learnt about his demise for the first time on that date was clearly in conflict with the ground mentioned by him in his affidavit filed in support of a similar application filed in First Appeal No. 984 of 1960 in the High Court. The main grounds on which the first defendants in the three suits resisted the applications have been stated by the learned trial Judge to be: (a) the plaintiffs had knowledge of the death of Bhagwandas on the date of his demise; (b) that the application is not bona fide; (c) that the Court has no jurisdic- tion to entertain such application; and (d) that the application was not properly signed and verified by Rasiklal Mehta holder of the power-of- attorney of the plaintiffs. ( 5 ) THE learned trial Judge came to the conclusion that the ground given in the applications for condonation of delay was false in that it was in conflict with the ground given by the deponent in a similar application made in First Appeal No- 984 of 1960 in the High Court and since no other ground was given by the deponent in this application the deponent had failed to make out a case for condona- tion of delay under Order 22 Rule 9 (3) of the Code of Civil Proce- dure read with sec. 5 of the Limitation Act 1963 The learned trial Judge after considering the case law on the subject came to the canclu- sion that in a suit for dissolution and accounts of a partnership firm or in a suit for accounts in respect of commission earned by one of the partners each and every partner is a necessary party since the share of each partner will have to be determined and thereafter on taking of accounts liabilities fixed in the proportion in which the shares were held by the partners and in the absence of any one of the partners the suit cannot proceed and hence the suit must abate in toto against the survi- ving defendants also. In that view that the learned trial Judge took he held that all the three suits had abated against the deceased defendant and therefore they stand terminated in their entirety against the rest of the defendants also. It is this order passed by the learned trial Judge on 27/04/1977 in the aforesaid three suits which is the subject matter of the present three appeals. ( 6 ) AN application to bring the legal representatives of a deceased defendant on record must be made within ninety days from the date of the death of the deceased. If no such application is made within the prescribed period the suit abates under Order 22 Rule 4 (3) of the Code of Civil Procedure. It is however open to the plaintiff to apply within sixty days from the date of abatement under Order 22 Rule 9 (2) for setting aside the abatement. If no such application is made within sixty days the Court may under sec. 5 of the Limitation Act entertain an application for setting aside the abatement in virtue of Order 22 Rule 9 of the Code. This is in brief the requirement of Order 22 Rule 4 and Rule 9 of the Code which are relevant for our purpose. It may also be pointed out that by the Amendment Act of 1976 sub-rules (4) and (5) were added to Rule 4 of Order 22 of the Code. This is in brief the requirement of Order 22 Rule 4 and Rule 9 of the Code which are relevant for our purpose. It may also be pointed out that by the Amendment Act of 1976 sub-rules (4) and (5) were added to Rule 4 of Order 22 of the Code. Sub-rule (4) lays down that the Court whenever it thinks fit may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who having filed it has failed to appear and contest the suit at the hearing; and judgment may in such case be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place. Sub-rule (5) lays down that where the plaintiff was ignorant of the death of a defendant and could not for that reason make an app- lication for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act 1963 and the suit has in consequence abated and the plaintiff applies after the expiry of the period specified therefor in the Limitation Act 1963 for setting aside the abatement and also for the admission of that app- lication under sec. 5 of that Act on the ground that he had by reason of such ignorance sufficient cause for not making the application within the period specified in that behalf the Court shall in considering the application under the said sec. 5 have due regard to the fact of such ignorance if proved. Admittedly on the date of the decision of the trial Court this amendment had become effective. The amendment being in regard to procedural matters would therefore be retrospective in operation. ( 7 ) ART. 120 of the Limitation Act 1963 lays down that an applica- tion to have the legal representatives of a deceased defendant made a party shall be filed within ninety days from the date of death of the defendant. There is no dispute that within the said period of limitation no application was filed under Order 22 Rule 4 of the Code. There is no dispute that within the said period of limitation no application was filed under Order 22 Rule 4 of the Code. Sub-rule (3) of Rule 4 of Order 22 next provides that where within the time limited by law no application is made under sub-rule (1) the suit shall abate as against the deceased defendant. In the instant case since no application was made within the prescribed period of ninety days the suit must be taken to have abated. Sub-rule (2) of Rule 9 of Order 22 next provides that the plaintiff may apply for an order to set aside the abatement and if it is proved that he was prevented by any sufficient cause from continuing the suit the Court shall set aside the abatement or dismissal upon such terms as to costs of otherwise as it thinks fit. Art. 121 in the Schedule to the Limitation Act 1963 provides that such an application shall be made within sixty days from the date of abate- ment. Admittedly within the said period of limitation no application for setting aside the abatement was made by the plaintiffs in the aforesaid three suits. Sub-rule (3) of Rule 9 of Order 22 next provides that the provisions of sec. 5 of the Limitation Act shall apply to applications under sub-rule (2 ). That means that under sub-rule (3) if the plaintiff can satisfy the Court that he had sufficient cause for not making the application to set aside the abatement within sixty days from the date of abatement the Court would have discretion to set aside the abate- ment even after the period of sixty days has expired. ( 8 ) ONE submission which was made by Mr. Trivedi the learned advocate for the first respondent in these three appeals may be dispo- sed of at this stage. He pointed out that in the application filed under sec. 5 of the Limitation Act there was no prayer for setting aside the abatement and therefore it could only be construed to be an applica- tion for condoning delay in applying under Order 22 Rule 4 for bringing the legal representatives of the deceased on record. The submission was that the application for condonation of delay being related to a matter covered by Order 22 Rule 4 of the Code an Appeal from Order could not lie. The submission was that the application for condonation of delay being related to a matter covered by Order 22 Rule 4 of the Code an Appeal from Order could not lie. In my opinion the argument is of a hypertechnical nature. Sub- rule (3) of Rule 9 of Order 22 in terms states that after the expiry of the period of sixty days prescribed by sub-rule (2) of Rule 9 an application can be filed invoking the provisions of sec. 5 of the Limitation Act. It is in cases where an application is filed after the expiry of sixty days from the date of abatement that an application under sec. 5 of the Limitation Act is contemplated. There is no provision for condonation of delay in making the application for setting side the abatement except the provision found in Order 22 Rule 9 of the Code. If no application is made within a period of ninety days under Order 22 Rule 4 (1) of the Code the suit abates as against the deceased defendant by virtue of sub-rule (3) of that Rule. Such an abatement can only be set aside by resorting to the procedure laid down in Rule 9 of that Order. If the application for setting aside the abatement is made within sixty days from the date of abatement that application would be governed by sub-rule (2) of Rule 9 of Order 22 but if the application is made after the period of sixty days has expired the plaintiff can apply under sub-rule (3) read with sec. 5 of the Limitation Act for setting aside the abatement and on the abatement being set aside the Court would be empowered to allow the application under Order 22 Rule 4 (1) of the Code. Therefore the only procedure which the plaintiff can follow after the suit has abated under Order 22 Rule 4 (3) is that which is set out in Rule 9 of that Order. An application under sec. 5 of the Limitation Act can be made only after the suit has abated and a period of sixty days from the date of abatement has elapsed. Such an application can only be to set aside the abatement on sufficient cause being shown by the plaintiff. Therefore the contention of Mr. Trivedi that since there is no specific prayer in the application made under sec. Such an application can only be to set aside the abatement on sufficient cause being shown by the plaintiff. Therefore the contention of Mr. Trivedi that since there is no specific prayer in the application made under sec. 5 of the Limitation Act for setting aside the abatement it cannot be construed to be an application under sub-rule (3) of Rule 9 of Order 22 is clearly a hyper- technical one and unsustainable. Therefore the preliminary objection raised by Mr. Trivedi on the question of maintainability of these three appeals must be brushed aside. ( 9 ) SEC. 5 of the Limitation Act provides that any application other than an application under any of the provisions of Order 21 of the Code of Civil Procedure may be admitted after the prescribed period if the applicant satisfies the Court that he had sufficient cause for not making the application within the period prescribed by law. Therefore in order to succeed the plaintiffs must show that they had sufficient cause for not preferring an application for setting aside the abatement within the period prescribed for making an application under sub-rule (2) of Rule 9 of Order 22 of the Code. According to that sub-rule the abatement can be set aside if it is proved that the plaintiff was prevented by any sufficient cause from continuing the suit. In the present appeals it is the case of the plaintiffs that they could not apply within the period of limitation because they learnt about the demise of Bhagwandas on 28/11/1974. Now it is an admitted fact that in First Appeal No 984 of 1960 the ground given for not making an application for bringing the legal representatives of respondent Bhagwandas on record was that they learnt about his demise somewhere in the first week of October 1974. There can be no doubt therefore that in the application made before the High Court the date of knowledge of the demise of Bhagwandas was stated to be the first week of October 1974 whereas in the applications made in the three suits pending in the City Civil Court the statement made was that the deponent learnt about his demise on 28/11/1974 Obviously these two statements made on different occasions by the same deponent Rasiklal are self-contradictory. If Rasiklal as per his statement made in the High Court in First Appeal No. 984 of 1960 learnt about the demise of Bhagwandas somewhere in the first week of October 1974 his subsequent statement in the three suits that he learnt about his demise for the first time on 28/11/1974 cannot be accepted as correct. That is why the learned trial Judge has come to the conclusion that the statement by Rasiklal that he learnt about the demise of Bhagwandas for the first time on 28/11/1974 when a Purshis was filed in Civil Suit No. 314 of 1961 is false. There cannot be any doubt that the subsequent statement made by Rasiklal that he derived knowledge about the death of Bhagwandas for the first time on 28/11/1974 is inaccurate. This inaccuracy in his statement was also highlighted in the affidavit-in-reply in Civil Application No. 2500 of 1974 in First Appeal No. 984 of 1960 before the High Court. In the affidavit- in-rejoinder while dealing with this contention the deponent Rasiklal Mehta stated" I submit that when an application for bringing on record the heirs of the dece- ased respondent No. 3 in the aforesaid First Appeal was made civil suits between these parties were pending in the City Civil Court Ahmedabad and therein also applications for bringing on record the heirs of the deceased respondent No. 3 in that appeal who was the defendant in these suits were also required to be made. I submit that at that time I might not have informed my advocate in the City Civil Court about the contents of the aforesaid Civil Application for heirs. . and as such the learned advocate in the lower Court had made out a different ground for condonation of delay in the application made in the lower Court. I submit that I am an old man of about 70 years and suffering from occasional attacks of blood pressure and heart trouble and during one such attack I might not have properly read the application made in the lower Court for bringing on record the heirs of the deceased Bhagwandas Kharavala and also the affidavit made by me in its support. I submit that the contradictions and inconsistency seem to have arisen because of a bona fide mistake and oversight on my part owing to my old age and peculiar ailment". I submit that the contradictions and inconsistency seem to have arisen because of a bona fide mistake and oversight on my part owing to my old age and peculiar ailment". It was however conceded by the deponent that he had learnt about the demise of the defendant Bhagwandas somewhere in the first week of October 1974. The High Court accepted this statement of the deponent and accordingly condoned the delay set aside the abatement and permitted the legal representatives of the deceased to be brought on record. There- fore even though the learned trial Judge is right that the statement of the deponent Rasiklal in the three suits that he learnt about the demise of the defendant Bhagwandas for the first time on 28/11/1974 is not correct the learned trial Judge ought to have proceeded on the basis that he had derived knowledge about the death of Bhagwandas some- where in the first week of October 1974. The learned trial Judge how- ever dismissed the applications on the ground that only one cause was shown for condonation of delay in all the three applications and that cause was found as a matter of fact to be false and therefore the delay could not be condoned. However it is found from the above-quo- ted explanation of the deponent in his affidavit-in-reply before the High Court that when he signed the affidavits filed in the City Civil Court in the aforesaid three suits he did not verify the correctness of the date of knowledge because of his ill-health. There is nothing on the record to show that he had knowledge about the death of Bhagwandas prior to the first week of October 1974. ( 10 ) THE next question which must be considered is whether the delay in filing the applications after the first week of October 1974 can be excused. If the deponent Rasiklal learnt about the demise of the defendant Bhagwandas in the first week of October 1974 we have to con- sider why he did not make an application for condonation of delay under sec. S of the Limitation Act read with sub-rule (3) of Rule 9 of Order 22 of the Code till 29/11/1974 and 2/12/1974 respe- ctively. For this delay the reason given out is that the suits were stayed under sec; 10 read with sec. S of the Limitation Act read with sub-rule (3) of Rule 9 of Order 22 of the Code till 29/11/1974 and 2/12/1974 respe- ctively. For this delay the reason given out is that the suits were stayed under sec; 10 read with sec. 151 of the Code of Civil Procedure because of the pendency of First Appeal No. 984 of 1960 in the High Court. Admittedly the stay operated at least upto the date of the disposal of the First Appeal on 14/10/1976. There can therefore be no doubt that while the applications were made on 29/11/1974 and 2/12/1974 the stay was in operation in all the three suit pending before the trial Court. That is why the plaintiffs did not realise the urgency of filing applications for bringing the legal representatives of deceased Bhagwandas on record immediately after they learnt about his demise. By the amendment in the Code of Civil Procedure the ground about ignorance of the death of the defendant is now statutorily recognised as a valid ground for condoning the delay and setting aside the abatement. ( 11 ) RELYING on the decision of the Supreme Court in Union of India v. Ram Charan A. I. R. R. 1964 S. C. 215 Mr. Trivedi submitted that an abatement ought not to be light-heartedly set aside as a matter of course because to do so would tantamount to taking away the valuable right which has vested in the respondent No. 1 on the termination of all the three suits. At the same time the Supreme Court has observed that while on the one hand the Court should not light-heartedly set aside an abatement on the other band it should not be over-strict in requiring proof why the application for substitution of legal representatives or for setting aside the abatement was not made in time. Mr. Trivedi reinforced his argument by inviting my attention to the decision of Divan J. (as he then was) in Devendraprasad v. Muktajivandas (1966) 7 G. L. R. 645 wherein it was observed that the applicant must explain the delay of each day after the period of limitation prescribed by law for making an application has expired. According to Mr. Trivedi in the three applications filed for condonation of delay no effort has been made to explain the delay after the first week of October 1974. According to Mr. Trivedi in the three applications filed for condonation of delay no effort has been made to explain the delay after the first week of October 1974. That is indeed true but at the same time it is necessary to bear in mind that all the three suits were stayed under sec. 10 read with sec. 151 of the Code of Civil Procedure and therefore the plaintiffs did not realise the urgency of filing an application for bringing the legal representatives of the deceased on record immediately after they learnt about his demise. It must also be borne in mind that the legal representatives of deceased Bhagwandas though served with notice did not choose to oppose the applications for condonation of delay setting aside of abatement and for bringing them on record as the legal representatives of the deceased defendant. Even in the present appeals they have not chosen to appear and resist these three appeals filed against the order of the learned trial Judge. It may therefore be safely assumed that even at present they have no objection if they are impleaded in the suit as the legal representatives of deceased Bhagwandas. It is only the first respondent who is opposing his application tooth and nail presu- mably because the allegations in the three suits are mainly directed against him. It must also be remembered that the plaintiffs had filed an appli- cation for bringing the legal representatives of the deceased on record in the High Court in the First Appeal No. 984 of 1960 and the delay in filing that application was condoned on the ground that the plaintiffs did not have the knowledge about the death of Bhagwandas prior to the first week of October 1974. From this circumstance it can be said without hesitation that there was no desire on the part of the plaintiffs to abandon the cause or give up the litigation pending against the defendants. ( 12 ) IN Karim Abdulla v. Bai Hoorbai (1975) 16 G. L. R. 835 my learned brother M. P. Thakkar J. had an occasion to lay down principles which should govern the Court dealing with an application under sec. 5 of the Limitation Act. He observed that the expression sufficient cause employed in sec. ( 12 ) IN Karim Abdulla v. Bai Hoorbai (1975) 16 G. L. R. 835 my learned brother M. P. Thakkar J. had an occasion to lay down principles which should govern the Court dealing with an application under sec. 5 of the Limitation Act. He observed that the expression sufficient cause employed in sec. 5 must be interpreted in a liberal manner so as to advance the cause of substantial justice particularly when no negligence or inaction or want of bona fides is imputable to a party. He then proceeded to lay down the guidelines and while doing so observed that when Courts have observed that every days delay must be explained they did not mean to convey that a pedantic unpragmatic approach should be made but the doctrine must be applied in a rational commonsense manner. The learned Judge says that when substantial justice and tech- nical considerations are pitted against each other cause of substantial justice deserves to be preferred for the other side cannot claim to have a vested right in injustice being done because of a non-deliberate delay. Therefore if the Court refuses to condone delay it can result in a meritorious matter being thrown out and justice being denied to a party which never desired to abandon or give up the cause with which it had approached the Court. ( 13 ) D. A. Desai J. in Asian Steel and Metals Pvt. Ltd. Ahmedabad v. Maganlal (1977) 18 G. L. R. R. 606 while dealing with the expression suffi- cient cause in sec. 5 of the Limitation Act observed that a liberal view must be taken by the Court so as to advance the cause of substantial justice and not to deny justice by adopting a highly technical narrow and constricted approach. He pointed out that in every case where an application for condonation of delay is made there is bound to be some element of negligence but the negligence must be of such gross inaction as to give rise to the inference that the party intended to give up the litigation. He pointed out that in every case where an application for condonation of delay is made there is bound to be some element of negligence but the negligence must be of such gross inaction as to give rise to the inference that the party intended to give up the litigation. In other words the learned Judge observed that if there was no desire on the part of the plaintiffs to abandon the cause or give up the litigation merely because there was some delay on their part in making an application for condonation of delay for setting aside the abatement such an application should not be refused on the technical doctrine of the party having failed to explain every days delay. ( 14 ) THE position of law as can be culled out from the aforesaid decisions is that a party seeking condonation of delay under sec. 5 of the Limitation Act must show sufficient cause for excusing the delay. However the Court in dealing with such an application must take a liberal view and should not be over-strict and highly technical so as to sacrifice the cause of substantial justice and thereby deny to the plaintiff the right to have his cause decided on merits. At the same time if there is gross negligence or inaction indicative of desire on the part of the plaintiff to abandon the cause or give up the litigation the Court would be justified in refusing to condone the delay. When the Courts speak about every days delay being explained they do not canvass that a hypertechnical pedantic and unpragmatic view should be adopted in dealing with applications for condonation of delay. Rules of procedure have been engrafted in the Code and elsewhere in law to advance the cause of justice and not to throttle its cause at the threshold. When the Courts speak about every days delay being explained they do not canvass that a hypertechnical pedantic and unpragmatic view should be adopted in dealing with applications for condonation of delay. Rules of procedure have been engrafted in the Code and elsewhere in law to advance the cause of justice and not to throttle its cause at the threshold. Therefore if it appears from the facts on record that the delay has not caused any pre- judice to the party opposing the application for condonation of delay in the sense that the said party has not taken any irreversible steps on the basis that the litigation has come to an end because of inaction on the part of the plaintiffs to take steps within the period of limitation for setting aside the abatement the Court should not take a technical view and refuse to condone the delay on the pedantic approach that every days delay is not explained. If on the other hand the inaction on the part of the plaintiffs is indicative of their desire to abandon the cause or give up the litigation the Court would be justified in refusing to condone the delay. In the present appeals the facts clearly show that the suits were lying on the dormant file because they were stayed on account of the first Appeal which was pending in the High Court. The plaintiffs therefore did not take immediate steps to apply for setting aside the abatement after they learnt about the demise of defendant Bhagwandas somewhere in the first week of October 1974. There was no urgency because the suits were not likely to proceed till the disposal of the appeal in the High (Court. The appeal came to be disposed of almost two years thereafter on 14/10/1976. However when the learned advocate representing the plaintiffs in the suits was informed about the death of defendant Bhagwandas he made an application for condonation of delay in the three suits on 29/11/1974 and 2/12/1974. It is true that in the affidavit in support of those applications the date of knowledge of the demise of Bhagwandas was inaccurately stated but that should not be a ground for putting an and to all the three suits wherein substantial claims have been made. It is true that in the affidavit in support of those applications the date of knowledge of the demise of Bhagwandas was inaccurately stated but that should not be a ground for putting an and to all the three suits wherein substantial claims have been made. To do so would be to deny to the plaintiffs the right of having their suits decided on merits on the technical ground that they did not make an application for bringing the legal representatives on record and for setting aside the abatement within the prescribed time particularly when it becomes clear from their conduct in the First Appeal in the High Court that they did not desire to aban- don or give up the cause and more so when there is no evidence to show that any prejudice is likely to be caused to the first respondent if the legal representatives of deceased Bhagwandas are brought on record since those legal representatives have never opposed the applications. I am therefore of the opinion that the learned trial Judge who did not have the benefit of the views expressed in the subsequent two decisions of this Court was wrong in dismissing the applications for condonation of the delay. ( 15 ) IN the result these three appeals are allowed and the order passed by the learned trial Judge on 27/04/1977 holding that the suits had abated and stood terminated in their entirety is set aside. The delay is condoned and the abatement is set aside. The applications for bringing the legal representatives of deceased Bhagwandas are allowed and the appellants are given four weeks time to carry out the necessary amendment in all the three suits. There will be no order as. to costs. Appeals allowed. .