Jharkhand High Court
Kedar Nath Sah vs Laxmi Narayan Sah Son Of Late Jogender ... on 18 March, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
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C.M.P. No. 214 of 2024
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Kedar Nath Sah, aged about 83 years sons of late Jagarnath Sah, r/o
Village Kumharpara, PO and PS Dumka Town, District Dumka, Jharkhand
...... .... ... Petitioner(s)
-- Versus --
1.Laxmi Narayan Sah son of late Jogender Prasad Sah
2.Chandra Deo Prasad Sah, s/o late Jogender Prasad Sah
3.Rupa Devi wife of Mahesh Prasad Sah
All r/o Pratap Sah Lane, Main Road, PO and PS Dumka Town, District
Dumka, Jharkhand ...... .... ...Plaintiff/O.Ps.
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner(s) : Mr. Jitendra Tripathi, Advocate
For the O.P.Nos.1,2&3 : Mr. Rajiv Nandan Prasad, Advocate
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6/18.03.2025 Heard the learned counsel for the petitioner as well as the learned
counsel for the Opposite party nos.1,2 and 3.
2. This petition has been filed under Article 227 of the Constitution of India
for setting aside the order dated 09.06.2023 passed in Original Suit No.81 of
2017 wherein the petition filed by the petitioner/defendant for abating the suit
as the plaintiff no.1 namely Dwarika Prasad Sah died on 30.11.2018 and has
not been substituted even after five years but the learned court has been
pleased to allow the substitution petition.
3 The learned counsel for the petitioner submits that the Original Suit
No.81 of 2017 was instituted for distribution of money among the co-sharer. He
further submits that plaintiff no.1 died on 13.11.2018 and plaintiff no.5 died on
05.12.2017 and they were not substituted and subsequently, the petition dated
25.4.2023 has been filed for substituting the name of legal heirs /successors of
plaintiff nos.1 and 5 which has been allowed by the learned court by the order
dated 09.06.2023. He submits that in this background, the petitioner who is
defendant in the suit, has filed a petition for declaring that the suit has already
been abated so far as the plaintiff no.1 and 5 are concerned and the learned
court has erroneously rejected the same.
4. On the other hand, Mr. Rajiv Nandan Prasad, the learned counsel
appearing on behalf of the Opposite parties submits that the learned court has
already allowed the substitution petition and pursuant to that, the plaintiff no.1
has already been substituted and the plaintiff no.5's legal heirs/successors were
already on the record and in view of that, the plaintiff no.5 was deleted from
the record the legal heirs/ successors of the plaintiff nos.1 and 5 have already
been substituted in the said suit. He submits that the substituted legal heirs/
successors of plaintiff no.1 have not been made Opposite party in the present
CMP although, in the trial court they have already been substituted. He further
submits that the learned court looking to the entire petition of substitution has
been pleased to allow the same and if such a situation is there, there is no
illegality in the order. He submits that there is no need of passing any order on
the abatement is concerned and the abatement is automatic. He submits that
once a petition is already allowed, the higher court is not required to interfere
with as the justice-oriented approach is required to be adopted by the courts.
He relied in the case of Mithailal Dalsangar Singh and Others v. Annabai
Devram Kini and Others reported in (2003) 10 SSC 691 and he refers to
paragraph nos.8 and 9 of the said judgment which is given below:
"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."
5. In view of above submission of the learned counsels appearing on behalf
of the parties, the Court finds that it is well settled that there is no need of
passing any separate order so far as the amendment is concerned and that is
automatic. When it has come to the knowledge, the said petition was filed later
on by the plaintiff /O.Ps and the learned court has allowed the same by the
order dated 09.06.2023 and after allowing the said petition, the said petition
has been filed for dismissing against plaintiff 1 and 5 on the ground of
abatement of the suit. In order to impart justice to the parties, bare mentioning
of the provision under a correct Order in spite of filing the same under another
Order, cannot be a ground of rejecting the same and if the petition is filed for
substitution, the entire contents of the petition is required to be looked into and
the intention of the abatement and limitation can be drawn in absence of any
specific prayer. Further the legal heirs/successors can be made party at every
stage and if the Court has come to the conclusion that they are the necessary
party and order has already been passed in light of the judgment of Hon'ble
Supreme Court in the case of Mithailal Dalsangar Singh and Others v.
Annabai Devram Kini and Others(supra), the Court is not required to
interfere with the same. As such, the Court finds that there is no illegality in the
impugned order and the substitution petition has already been allowed meaning
thereby that abatement and limitation has already been set aside. As such,
C.M.P. No.214 of 2024 is dismissed.
( Sanjay Kumar Dwivedi, J.)
SI/,
A.F.R.
