MITHAILAL DALSANGAR SINGH AND ORS. versus ANNABAI DEVRAM KINI AND ORS.

Citation: [2003] SUPP. 3 S.C.R. 822 · Decided: 16-09-2003 · Supreme Court of India · Bench: R.C. LAHOTI · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
MITHAILAL DALSANGAR SINGH AND ORS. 
v. 
ANNABAi DEVRAM KINI AND ORS. 
SEPTEMBER 16, 2003 
[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 c

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