Research › Search › Judgment

Rajasthan High Court · body

2025 DIGILAW 492 (RAJ)

Radheyshyam v. Bhajan Lal

2025-02-21

BIRENDRA KUMAR

body2025
ORDER : BIRENDRA KUMAR, J. 1. This Civil Revision is against order dated 01.12.2023 passed in Civil Suit No.182/2020, whereby, the learned trial judge has allowed the prayer of the plaintiff to substitute the legal heirs of deceased - defendant No.7 - Radha. Prayer was made under Order XXII Rule 4 CPC along with an application filed under Section 5 of the Limitation Act for condonation of delay in making the prayer. 2. During pendency of the suit, defendant No.7 Radha died on 16.02.2022. This fact came to the notice of the plaintiff from the counsel for the respondent on 11.11.2022. Thereafter, on 18.11.2022, an application under Order XXII Rule 4 CPC was filed for substitution of legal heirs of defendant No.7 – Radha. On the same day, an application under Section 5 of the Limitation Act was also filed stating therein that the plaintiff came to know about the death of defendant No.7 – Radha only on 11.11.2022 and on the same day, filed an application to the trial court as it was date; to the effect that very soon the plaintiff would file substitution application and accordingly, substitution application was filed on 18.11.2022. 3. Learned counsel for the petitioners submits that as per Article 120 of the Limitation Act, the prayer for substitution was required to be made within 90 days of the date of death and if it was not made within 90 days, the suit against the deceased – defendant No.7 got abated and for setting aside abatement, further 60 days was allowed. Learned counsel for the petitioners further contends that the plaintiff had knowledge of death of defendant No.7 – Radha since very inception because plaintiff had participated in the last rituals of Radha. It was duty of the plaintiff to substitute the legal heirs within time. 4. Learned counsel next contends that Rule 9 of Order XXII CPC requires prayer for seting aside abatement arising out of death of Radha in the case on hand, which was not made. Unless prayer for substitution could have been made under Order XXII Rule 9 CPC, there is no question of setting aside abatement. Unless abatement was set aside, the substitution could not have been allowed. 5. The provisions of Order XXII Rule 9 CPC is being reproduced below:- “9. Effect of abatement or dismissal . Unless prayer for substitution could have been made under Order XXII Rule 9 CPC, there is no question of setting aside abatement. Unless abatement was set aside, the substitution could not have been allowed. 5. The provisions of Order XXII Rule 9 CPC is being reproduced below:- “9. Effect of abatement or dismissal . - (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. (2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; 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 or otherwise as it thinks fit. (3) The provisions of section 5 of the Indian Limitation Act, 1877 (15 of 1877), shall apply to applications under Sub-rule(2). [Explanation.- Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order.” 6. Learned counsel for the petitioners has relied on the judgment of the Hon’ble Supreme Court in Gurnam Singh (D) Thr. Lrs. & Ors. Vs. Gurbachan Kaur (D) Thr. Lrs. & Ors. vide Civil Appeal No.5671/2017 (arising out of SLP (c) No.26798/2011) decided on 27.04.2017. In para 21 of the aforesaid judgment, the Hon’ble Supreme Court observed as follows:- “21. In our considered view, the appeal could be revived for hearing only when firstly, the proposed legal representatives of the deceased persons had filed an application for substitution of their names and secondly, they had applied for setting aside of the abatement under Order 22, Rule 9 of the Code and making out therein a sufficient cause for setting aside of an abatement and lastly, had filed an application under Section 5 of the Limitation Act seeking condonation of delay in filing the substitution application under Order 22 Rule 3 and 4 of the Code beyond the statutory period of 90 days. If these applications had been allowed by the High Court, the second appeal could have been revived for final hearing but not otherwise. Such was not the case here because no such applications had been filed.” 7. Learned counsel for the plaintiff-respondent submits that it is consistent judicial pronouncements that a simple prayer for bringing the legal representatives of the deceased party on the record would suffice the fulfillment of requirement of law and by necessary implication would include prayer for setting aside abatement. 8. Learned counsel has relied on judgment of the Hon’ble Supreme Court in Mithailal Dalsangar Singh & Ors. Vs. Annabai Devram Kini & Ors. reported in (2003) 10 SCC 691 decided on 16.09.2003. In the aforesaid case, the Hon’ble Supreme Court held adoption of justice oriented approach, rather, technicalities of the procedural compliance and observed in paras – 8 and 9 as follows:- “8. 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 payer 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 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 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 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 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.” 9. The aforesaid judgment was followed in Om Prakash Gupta Alias Lalloowa (Now Deceased) & Ors. Vs. Satish Chandra (Now Deceased) decided along with connected appeal on 11.02.2025 reported in 2025 INSC 183 Fact of the case in Om Prakash (supra) is that Satish Chandra had passed away on 02.12.1996 during pendency of the second appeal. On 02.01.1997, his legal heirs moved an application for substitution. The High Court restored the second appeal allowing prayer for substitution by order dated 25.05.2018, however, by order dated 11.09.2019, the said order of restoration was recalled for the reason that in absence of an application praying for setting aside the abatement, the second appeal could not have been ordered to be restored. Para No.23 of the judgment reads as follows:- "23. We find it difficult to agree with such reasoning. When an application praying for substitution had been made, then, even assuming that it does not have an explicit prayer for setting aside the abatement, such prayer could be read as inherent in the prayer for substitution in the interest of justice. We draw inspiration for such a conclusion, having read the decision in Mithailal Dalsangar Singh Vs. Annabai Devram Kini.” 10. We draw inspiration for such a conclusion, having read the decision in Mithailal Dalsangar Singh Vs. Annabai Devram Kini.” 10. In view of the legal position settled above, if the impugned order is sustained, the worst would be that the matter would be decided after hearing the parties to the satisfaction of the litigant that their litigation has not been thrown away on mere technicalities. Therefore, the impugned order needs no interference and this Civil Revision stands dismissed as devoid of any merit.