[Cites 4, Cited by 0]
Madhya Pradesh High Court
Awadhnarayan vs The State Of Madhya Pradesh on 17 March, 2026
1 FA-934-2006
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
FA No. 934 of 2006
(AWADHNARAYAN Vs THE STATE OF MADHYA PRADESH AND OTHERS )
Dated : 17-03-2026
Shri Devendra Kumar Tripathi - Advocate for the LRs of appellant.
Shri Ram Kumar Shrivastava Advocate for respondents No.22, 23 and 24.
Heard on I.A.No.1989/2026-application for substitution of Legal
Representatives of the deceased appellant, I.A.No.1990/2026-application for
setting aside abatement caused due to the death of appellant
and I.A.No.1991/2026-application for condonation of delay in filing the
application for setting aside abatement.
It is submitted by learned counsel for the appellant that the appellant-
Awadhnarayan had expired on 01.12.2018 for which death certificate has been
filed as Annexure A/1. It is further submitted that the appellant had left behind LRs
of whose description is mentioned in the application in para 3. It is submitted that
the right to sue survive with the LRs of the deceased appellant. It is further
submitted that the applicants are the LRs of the deceased appellant and they were
not aware of the proceedings pending before the Court. It is further submitted they
have not been informed by either of the parties that the present appeal is pending
and the appeal has been filed by the father of the applicants. It is further submitted
that the LRs have come to know about the pendency of the appeal only when the
compromise has been entered in the cross-objection filed by the cousins of the
respondents. It is further submitted that the delay caused in the filing the
application is based on bonafide. The litigation and the dispute between the parties
is pending in a connected appeal. The suit was filed by the appellant and the
respondents who have filed the cross-objection in the connected matter, as co-
2 FA-934-2006
plaintiffs. As cause objection survives, the cause to prosecute the present appeal
also survives. It is prayed that in the interest of justice, the delay be condoned and
abatement be set-aside caused due to the death of the appellant.
Prayer has been opposed by the respondents who are cousins of the appellant
and respondents in the connected appeal, wherein, they have filed cross-objection,
on the ground that this Court vide order dated 30.07.2012 had passed a peremptory
order directing the counsel of the appellant to file an application under Order 22
Rule 9 of the CPC within one month for setting aside abatement caused due to the
death of respondent No.13. It is further submitted that thereafter, many a times, the
Court has directed to file necessary application for setting aside abatement caused
due to the death of several respondents. However, the fact remains that there is no
order against the appellant recording abatement of the appeal due to death of
appellant.
The Hon'ble Apex Court in the case of Om Prakash Gupta alias Lalloowa
(now deceased) and others vs. Satish Chandra (now deceased) and others reported
in 2025 SCC OnLine SC 291 wherein it is held :
"23. We find it difficult to agree with such reasoning. When an application praying
for substitution had been made, then, even 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. 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
3 FA-934-2006
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.
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).
Considering the submission of the counsel for the LRs of the
appellant/applicants and for the reason mentioned in the application, coupled with
the fact that the litigation in regard to the same subject matter is pending in the
connected appeal, wherein, the cousins of the appellant, who are the co-plaintiffs,
have filed cross-objection, the application for condoning the delay is allowed.
4 FA-934-2006
Accordingly, delay in filing the application for setting aside abatement is hereby
condoned and abatement caused due to the death of the appellant is hereby set-
aside. The application for substitution of LRs of the appellant is allowed.
Let the amendment be carried out in the memo of appeal within seven days
from today.
As the Vakalatnama on behalf of the applicants is already on record, no
further notice is required.
I.A.No.1989/2026, I.A.No.1990/2026 and I.A.No.1991/2026 stand disposed
of.
Counsel for the appellant prays for time to file necessary applications.
As a last indulgence, two weeks time is granted to file necessary
applications and replies in regard to the pending applications.
List in the week commencing 15.04.2026 for further orders.
(DEEPAK KHOT)
JUDGE
anand
