Madhya Pradesh High Court
Shri Vidyadhar Shamji Rao Patte vs Late Smt. Prabha Keshavrao Ambarte ... on 25 August, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KHOT
ON THE 25th OF AUGUST, 2025
MISC. PETITION No. 4422 of 2025
SHRI VIDYADHAR SHAMJI RAO PATTE AND OTHERS
Versus
LATE SMT. PRABHA KESHAVRAO AMBARTE (DEAD) THROUGH
LRS SHRI KESHAVRAO NATTHUJI AMBARTE AND OTHERS
Appearance:
Shri Ashok Kumar Tiwari - Advocate for the petitioner.
ORDER
This petition under Article 227 of the Constitution of India has been
filed by the petitioner challenging the order dated 12.07.2025 passed by
Additional Judge to the District Judge Sausar, District Chhindwara in MCA
No.18/2019; whereby, the appeal filed under Order 43 Rule 1 of CPC has
been allowed thereby allowing the application submitted under Order 22
Rule 9 of CPC before the Civil Court. The Civil Court, vide order dated
13.09.2019, had dismissed the application.
2. It has been submitted by counsel for the petitioner that the learned
Appellate Court has committed grave error of law and jurisdiction while
allowing the appeal. This Court vide order dated 07.02.2018 passed in CR
No.160/2017 in the petition submitted by the petitioner/defendant had
relegated the matter to the Civil Court with liberty to file application under
Order 22 Rule 9 of CPC for setting aside abatement. This Court while
remitting back the matter has observed that the application under Order 22
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Rule 3 of CPC without an application under Order 22 Rule 9 of CPC was not
maintainable and therefore, a chance has been given to the
respondent/plaintiff to file appropriate application for setting aside
abatement.
3 . The grounds taken in earlier application has been dealt with in
regard to non-availability of the Presiding Officer on 27.07.2015. It has been
observed that this cannot be a ground for not filing an application on a
particular date.
4. It has been submitted that the Civil Court on the observation of this
Court has rejected the application filed under Order 22 Rule 9 of CPC.
However, in the appeal , the appellate Court has allowed the appeal on the
pretext that on technical grounds, the application under Order 22 Rule 9 of
CPC cannot be dismissed as right to prosecute survives with the legal
representatives of the deceased/plaintiff.
5. The Appellate Court, while allowing the appeal placing reliance on
the judgment of the Hon'ble Apex Court in the case of Bhag Singh vs Major
Daljit Singh 1987 SCC (Supp.) 685, has observed that the delay in filing the
application under Order 22 Rule 9 of CPC has to be dealt with leniency. It
has been observed that the information to the counsel has been given by the
LRs of the deceased on 27.07.2015 and on the next date i.e. 13.08.2015 such
application under Order 22 Rule 3 CPC has been filed by the counsel. It is
submitted that it was the duty of the counsel to submit the application once
the information has been received from the LRs and it was not within the
domain of the LRs to file application in the counter of the Court in absence
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of the Presiding Officer and on that ground has allowed the appeal by
directing the Civil Court to substitute the name of LRs in place of
deceased/plaintiff. It has been contended by counsel for the petitioner that
the learned appellate Court has committed grave error of law and jurisdiction
while allowing the appeal, thereby, allowing the application under Order 22
Rule 9 of CPC in absence of any application for condonation of delay of 13
days.
6 . The appellate Court has glossed over the sight of the fact that the
application for condonation of delay has not been filed and therefore, the
impugned order being illegal and without jurisdiction and deserves to be
quashed by exercising supervisory jurisdiction by this Court.
7. Heard learned counsel for the petitioner and perused the record.
8 . This Court in the earlier round of litigation has observed that the
earlier application filed under Order 22 Rule 3 of CPC solely without an
application for setting aside abatement was not maintainable, therefore, the
matter has been relegated to the civil Court to decide it afresh. This Court
has not observed that the application is to be discarded at the threshold, due
to delay. In fact, liberty has been granted to file an application for setting
aside abatement which is apparent from Annexure P/2.
9. The observation in regard to the delay has been though recorded in
the order but no direction has been issued in regard to that, at this stage, such
submission as advanced by the petitioner/plaintiff is to be disregarded. The
appellate Court while considering the ground for setting aside abatement has
taken a view that such application for setting aside abatement is to be dealt
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with leniency. The submission of petitioner has no force as in earlier point of
time, the respondent/plaintiff has filed an application under Order 22 Rule 3
of CPC with an application for condonation of delay but this Court has
relegated the matter to the Court below for filing application under Order 22
Rule 9 of CPC as such application of condonation of delay was already on
record.
10. The Hon'ble Apex Court in the case of Mithailal Dalsangar Singh
vs Annabai Devram Kini (2003) 10 SCC 691 has held that 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 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.
"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
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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.
10. In the present case, the learned trial Judge found sufficient cause
for condonation of delay in moving the application and such finding having
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been reasonably arrived at and based on the material available, was not open
for interference by the Division Bench. In fact, the Division Bench has not
even reversed that finding; rather the Division Bench has proceeded on the
reasoning that the suit filed by three plaintiffs having abated in its entirety by
reason of the death of one of the plaintiffs, and then the fact that no prayer
was made by the two surviving plaintiffs as also by the legal representatives
of the deceased plaintiff for setting aside of the abatement in its entirety, the
suit could not have been revived. In our opinion, such an approach adopted
by the Division Bench verges on too fine a technicality and results in
injustice being done. There was no order in writing passed by the court
dismissing the entire suit as having abated. The suit has been treated by the
Division Bench to have abated in its entirety by operation of law. For a
period of ninety days from the date of death of any party the suit remains in
a state of suspended animation. And then it abates. The converse would also
logically follow. Once the prayer made by the legal representatives of the
deceased plaintiff for setting aside the abatement as regards the deceased
plaintiff was allowed, and the legal representatives of the deceased plaintiff
came on record, the constitution of the suit was rendered good; it revived and
the abatement of the suit would be deemed to have been set aside in its
entirety even though there was no specific prayer made and no specific order
of the court passed in that behalf."
11. On the basis of aforesaid principle laid down by the Hon'ble Apex
Court, it is clear that once the proposed LRs of plaintiff wishes to take part in
the suit by way of substitution after the death of the plaintiff and cause to
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prosecute survives, then if an application is filed, the Court should deal such
application with leniency.
12. On the basis of the aforesaid analysis and after taking guidance
from the principle laid down by the Hon'ble Apex Court, this Court is of the
considered opinion that the Appellate Court has not committed any error of
law or jurisdiction in allowing the appeal thereby allowing the application
under Order 22 Rule 9 of CPC for setting aside abatement.
13. The petition fails and is hereby dismissed.
(DEEPAK KHOT)
JUDGE
anand
