Rajasthan High Court - Jodhpur
Champalal vs Lrs. Of Suleman Khan ... on 21 April, 2025
Author: Birendra Kumar
Bench: Birendra Kumar
[2025:RJ-JD:19045]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 5217/2025
Champalal S/o Shri Amritlal, Aged About 58 Years, R/o Phalsund,
Tehsil Bhaniyana, District Jaisalmer (Rajasthan).
----Petitioner
Versus
1. Lrs. Of Suleman Khan, S/o Shri Kherdeen Khan, R/o
Karara, Tehsil Bhaniyana, District Jaisalmer, (Rajasthan)
(Since Deceased) -
2. Ishekhan S/o Shri Suleman Khan, Resident Of Karada
Swamiji Ki Dhani, Tehsil Phalsund, District Jaisalmer
(Rajasthan).
3. Isi D/o Shri Suleman Khan, W/o Ursekhan, Resident Of
Toga, Tehsil Shiv, District Barmer (Rajasthan).
4. Bakekhan S/o Shri Suleman Khan, Resident Of Karada
Swamiji Ki Dhani, Tehsil Phalsund, District Jaisalmer
(Rajasthan).
5. Meethi D/o Shri Suleman Khan, W/o Peere Khan, Resident
Of Toga, Tehsil Shiv, District Barmer (Rajasthan).
----Respondents
For Petitioner(s) : Mr. Trilok Joshi.
For Respondent(s) : Mr. Ikbal Khan. Mr. Harish Purohit.
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Order
21/04/2025
1. The background of the impugned order is that the
plaintiff/petitioner had filed Civil Original Suit No. 317/2017 for
specific performance of contract against original defendant
Suleman Khan. Suleman Khan died on 14.6.2023. Death of
Suleman Khan was informed to the Court by the counsel of
Suleman Khan on 3.8.2023. In that application there was no
mention of name of legal heirs of Suleman Khan. The
[2025:RJ-JD:19045] (2 of 5) [CW-5217/2025]
plaintiff/petitioner claims that he collected information regarding
legal heirs and filed petition for substitution of legal heirs of
Suleman Khan on 20.1.2024 under Order XXII Rule 4 CPC. In the
meantime, cancer was detected to the counsel appearing for the
plaintiff/petitioner and he was undergoing treatment and
ultimately died on 8.11.2024.
2. The defendants/respondents raised objection before the trial
Judge that since application under Order XXII Rule 4 CPC was
beyond period of 90 days, hence, prayer for substitution of legal
heirs could have been allowed only after prayer for setting aside
abatement as required under Order XXII Rule 9 CPC. Side by side,
a written prayer for condonation of delay under Section 5 of the
Limitation Act should also have been made. The learned trial
Judge was of the view that since no prayer for setting aside
abatement was there, as such prayer for substitution could not
have been allowed after 90 days, unless abatement, which has
already occurred due to the death of sole respondent, was set
aside. The learned trial Judge dismissed the entire suit as abated.
3. It is not disputed that late Aasha Ram Chandak was advocate
on record on behalf of the plaintiff. His vakalatnama as well as
death certificate are already on the record.
4. Learned counsel for the respondents submits that an appeal
under Order XLIII Rule 1(k) CPC would be maintainable against
the impugned order and not a writ petition. On the other hand
contention of learned counsel for the petitioner/plaintiff is that
there is consistent judicial pronouncement that a simple prayer for
bringing the legal representatives of the deceased party on the
record would suffice the fulfillment of requirement of law and by
[2025:RJ-JD:19045] (3 of 5) [CW-5217/2025]
necessary implication would include prayer for setting aside of
abatement.
5. In Mithailal Dalsangar Singh & Ors. Vs. Annabai
Devram Kini & Ors., reported in (2003) 10 SCC 691 decided
on 16.9.2003, the Hon'ble Supreme Court held that Justice
oriented approach should be adopted, rather than technicalities of
the procedural compliance. Para 8 and 9 of the judgment is being
reproduced below:-
"8. In as much 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 abatement. So also a prayer for setting aside
abatement as regard 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
[2025:RJ-JD:19045] (4 of 5) [CW-5217/2025]
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 upper most 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
Section 5 of the Indian Limitation Act, 1963 deserves
to be given weight, and once arrived at would not
normally be interfered with by superior jurisdiction."
6. Considering the aforesaid guidelines and the facts of this
case narrated above, the Court below ought to have exercised
jurisdiction to facilitate the justice by allowing the parties to
contest the matter on merit. Since by necessary implication, once
the prayer for substitution of legal heirs was made, the prayer for
setting aside abatement was also included and only for technical
reasons that separate prayer should have been made, the justice
should not have been allowed to be throttled. Availability of
remedy of appeal is not efficacious remedy in the facts and
circumstances of this case as the impugned order has led to
manifest miscarriage of justice.
Hence, the same stands hereby quashed and this writ
petition is allowed.
[2025:RJ-JD:19045] (5 of 5) [CW-5217/2025]
7. The suit is restored to its original file. Learned trial Judge
shall proceed according to law.
(BIRENDRA KUMAR),J
12-sumer/-
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