Decided on August 09,2007



J.M.MALIK, J. - (1.) Mahesh Chand and his wife Smt. Rama Gupta, respondents filed a Probate petition for seeking grant of probate and letter of administration under Section 272 read with Section 276 of Indian Succession Act before the Trial Court in the year 1991. They moved an application dated 16.02.2001, wherein it was averred that that Smt. Swarna, respondent no.6 had expired on 12.08.1999 and as the petitioners/respondents were not on visiting terms with respondent no. 6 therefore, they were not aware of the fact that application for impleadment of her legal representatives was to be moved. The appellants in their reply contended that Smt. Swarna was the real sister of the petitioners and they were very much aware of her death and the names of her legal heirs. The trial court recorded the statement of Mahesh Chand respondent No.1 under order 10 CPC. He stated that Smt. Swarna died on 12.08.1999. He testified that, although, he did not attend the cremation of his sister, yet, he came to know about her death on 13.08.1999 i.e. on the next day of her death. He further stated that she had left behind her five children besides her husband. The application was dismissed as it was barred by Limitation Act, 1963. The learned trial court also observed, "the petitioner, could have applied for setting aside of the abatement on showing sufficient cause for the same and that too could have been done by him within a period of 60 days from date of abatement. The petition, therefore, abates as against respondent no. 6." The review petition filed by the petitioners was also dismissed vide order dated 20.03.2006.
(2.) Thereafter, the Mahesh Chand and his wife moved applications under Order 22 Rule 9(2) read with Section 151 CPC for setting aside the abatement of petition and under Order 22 Rule 9(3) CPC read with Section 5 of the Limitation Act for condonation of delay in filing of the application for setting aside of abatement of the petition. It was pointed out that the petitioners had informed his previous counsel that his sister Swarna had died but he advised them that they need not to file the application for impleadment of the LRs of the deceased person. Thereafter, new advocate was engaged and the above said application was moved. The trial court placed reliance on authorities reported in Sardar Amarjit Singh Kalra Vs. Pramod Gupta, AIR 2003 SC 2588, Sita Prasad Saxena Vs. Union, (1985) 1 SCC 163, Mithailal Dalsangar Singh Vs. Annabai Devram Kini, AIR 2003 SC 4244 and Rafiq and Anr. Vs. Munshilal and Anr., (1981) 2 SCC 788 and accepted the petition moved by Mahesh Chand and another. Aggrieved by that order the present appeal has been preferred.
(3.) I have heard the counsel for the parties. The principal argument urged by the learned counsel for the appellants was that the first application moved under Order 22 Rule 4 CPC for bringing heirs of the deceased on record implies that the petitioners wanted to set aside the abatement, if any, that has occurred and bring the heirs on record. An application for bringing heirs can be granted without setting aside an abatement. He opined that any subsequent application moved for the same relief is barred by the principles of res judicata. In this context, he has drawn my attention towards few authorities. In Mithailal Dalsangar Singh Vs. Annabai Devram Kini(supra) it was held :- "8. 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. 9. The 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 superior jurisdiction.";

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