Madhya Pradesh High Court
Kirti Jain vs Chamanlal Jain on 17 October, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:52949
1 MP-5302-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KHOT
ON THE 17th OF OCTOBER, 2025
MISC. PETITION No. 5302 of 2025
KIRTI JAIN AND OTHERS
Versus
CHAMANLAL JAIN AND OTHERS
Appearance:
Shri Akhilesh Ku Jain - Advocate for the petitioners.
Smt. Mamta Mishra - P.L. for the responndent/State.
ORDER
The present petition has been filed by the petitioner being aggrieved
by the order dated 7.8.2025 passed by II Civil Judge, Junior Division,
Uchehara, District, Satna in Civil Suit No.17/2019, whereby the applications
submitted by the petitioner/ plaintiff for bringing the LRs of defendant no.1
and defendant no.16, I.A.No.2/2025 and I.A.No.3/2025, have been rejected.
2. As the application remained unopposed before the court below, this
court is of the opinion that presence of respondents is not necessary.
3. It has been submitted by learned counsel for the petitioner that the
application for substitution of LRs of defendant No.1 was well within time;
but, the same has been rejected on the ground that death certificate of the
deceased defendant no.1 and his family tree have not been filed. It has been
submitted that it is apparent from the order-sheets that there is no dispute in
regard to the legal heirs proposed by the petitioner/plaintiff in the application
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by any of the defendants. In absence of any dispute in regard to death as
well as the legal heirs, the application ought to have been allowed. The
learned Court below has committed error of law in not allowing the
application. It is further submitted that Order 22 Rule 4 C.P.C. prescribes for
substitution of LRs of the defendant, which as per the dictum of the Hon.
Apex Court is the power vested with the court and the same should be
exercised judicially. Further, it is submitted that second application for
substitution of LRs of defendant No.16 has been filed on the next hearing
when the information was given in respect of death of defendant No.16 by
the counsel before the court. Therefore, such application was based on bona
fide and considering the date of knowledge/information ought to have been
allowed. Counsel for the petitioner has relied on the judgment of the Hon.
Apex Court in the case of Om Prakash Gupta allias Lalloowa (now deceased)
and others Vs. Satish Chandra (now deceased), reported in AIR 2025 SC
1201, to submit that if the application under Order 22 Rule 4 CPC has been
filed, prayer of setting aside abatement is inherent, and if the application
under Order 22 Rule 9 CPC and section 5 of Limitation Act are not filed,
then even assuming that it does not have an explicit prayer for setting aside
abatement, such prayer could be read as inherent in the prayer for
substitution in the interest of justice. It has also been held that the prayer for
setting aside abatement and the dismissal consequent upon an abatement
have to be considered liberally. The relevant paragraph of the said judgment
is reproduced hereinbelow :-
"23. We find it difficult to agree with such reasoning. When an
application praying for substitution had been made, then, even
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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 v. Annabai Devram Kini, (2003)10 SCC 691. This Court
reiterated the need for a justice-oriented approach in such matters.
Inter alia, it was held that prayer to bring on record heir(s)/legal
representative(s) can also be construed as a prayer for setting aside
the abatement. The relevant passage reads as under:
"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
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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, ... 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."
(emphasis
supplied)
4. As it is found from the impugned order that both the applications
were not opposed by the defendants and such power is inherent with the
Court, the Court ought to have considered the application in the light of the
dictum of the Hon. Apex Court as the order has been passed dehors the
principle as laid down by Hon. Apex Court, in the considered opinion of this
court, the impugned order dated 7.8.2025 passed by II Civil Judge, Junior
Division, Uchehara, District, Satna in Civil Suit No.17/2019 is bad in law
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and is hereby quashed. The matter is remanded back to the court below to
decide the application afresh on its own merits, considering the law laid
down by Hon. Apex Court in the case of Om Prakash Gupta (supra).
5. With the aforesaid direction, this petition is disposed of.
(DEEPAK KHOT)
JUDGE
HS
