Rajasthan High Court - Jodhpur
Radheyshyam vs Bhajan Lal on 21 February, 2025
Author: Birendra Kumar
Bench: Birendra Kumar
[2025:RJ-JD:10161]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision Petition No. 1/2024
1. Radheyshyam S/o Bagda Ram, Aged About 58 Years, R/o
Morden Market, Bikaner (Raj.)
2. Gopiram S/o Bagda Ram, Aged About 56 Years, R/o
Morden Market, Bikaner (Raj.)
3. Shankar Lal S/o Bagda Ram, Aged About 54 Years, R/o
Morden Market, Bikaner (Raj.)
4. Laxman S/o Bagda Ram, Aged About 52 Years, B/c
Vishnoi, R/o Morden Market, Bikaner (Raj.)
----Petitioners
Versus
1. Bhajan Lal S/o Bagda Ram (Alleged S/o Bagda Ram),
Aged About 67 Years, R/o Morden Market, Bikaner (Raj.)
At Present R/o Ward No. 6, Nokha, Dist. Bikaner (Raj.)
2. Maniram S/o Bagda Ram, B/c Vishnoi, R/o Village Jegla,
Panna Daroga, Tehsil Nokha, Dist. Bikaner (Raj.)
3. Varju W/o Bagda Ram, B/c Vishnoi, R/o Village Jegla,
Panna Daroga, Tehsil Nokha, Dist. Bikaner (Raj.)
(Deceased)
4. Lrs Of Radha, (Deceased)
4/1. Maniram S/o Dharma Ram, B/c Saharan, R/o Opposite
Saharan Hospital, Nagaur (Raj.)
4/2. Dilip S/o Maniram, B/c Saharan, R/o Opposite Saharan
Hospital, Nagaur (Raj.)
4/3. Bablu @ Poonam D/o Maniram, B/c Saharan, R/o C/o
Maniram Saharan, Opposite Saharan Hospital, Nagaur
(Raj.)
4/4. Santosh D/o Maniram, B/c Saharan, R/o C/o Maniram
Saharan, Opposite Saharan Hospital, Nagaur (Raj.)
5. Lrs Of Smt. Savitri, (Deceased)
5/1. Hetram S/o Maniram, B/c Manju Vishnoi, R/o Chak 14,
Dkd, Navavwala Khajuwala, Dist. Bikaner (Raj.)
5/2. Maya D/o Savitri, W/o Suresh Vishnoi, R/o 15 Lkd, Rawla,
Dist. Bikaner (Raj.)
5/3. Pushpa D/o Savitri, W/o Subhash Vishnoi, R/o Village
Baniya, Tehsil Nokha, Dist. Bikaner (Raj.)
(Downloaded on 21/02/2025 at 11:16:33 PM)
[2025:RJ-JD:10161] (2 of 7) [CR-1/2024]
5/4. Santosh D/o Savitri, W/o Sudhir Vishnoi, R/o Village
Rawla, Dist. Bikaner (Raj.)
5/5. Kumari Suman D/o Savitri, W/o Hetram, R/o Chak Dkd,
Navavwala Kahjulwala, Dist. Bikaner (Raj.)
6. Smt. Munni W/o Dharma Ram (Dhayal) Vishnoi, D/o Lage
Bagda Ram Vishnoi, R/o Village Chakda, Tehsil Kolayat,
Dist. Bikaner (Raj.)
7. Smt. Licchma W/o Banwari Lal Vishnoi, D/o Bagda Ram,
R/o Village Salunda, Tehsil Nokha, Dist. Bikaner (Raj.)
8. Smt. Sharda W/o Bhupram Manda Vishnoi, D/o Bagda
Ram Vishnoi, R/o Village Rassisar, Tehsil Nokha, Dist.
Bikaner (Raj.)
9. Smt. Rameshwari W/o Omprakash, D/o Bagda Ram
Vishnoi, R/o Jambeshwar Chowk, Nokha, Dist. Bikaner
(Raj.)
10. Branch Manager, Corporate Bank, Morden Market, Bikaner
(Raj.)
11. Branch Manager, Reliance Mutual Fund Limited, First
Floor, Above Corporate Bank, Morden Market, Bikaner
(Raj.)
----Respondents
For Petitioner(s) : Mr. Sajjan Singh Rajpurohit
For Respondent(s) : Mr. Suresh Shrimali
Mr. Rishabh Shrimali
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Order
Reserved on :- 19/02/2025
Pronounced on:- 21/02/2025
1. This Civil Revision is against order dated 01.12.2023 passed
in Civil Suit No.182/2020, whereby, the learned trial judge has
allowed the prayer of the plaintiff to substitute the legal heirs of
deceased - defendant No.7 - Radha. Prayer was made under Order
[2025:RJ-JD:10161] (3 of 7) [CR-1/2024]
XXII Rule 4 CPC along with an application filed under Section 5 of
the Limitation Act for condonation of delay in making the prayer.
2. During pendency of the suit, defendant No.7 Radha died on
16.02.2022. This fact came to the notice of the plaintiff from the
counsel for the respondent on 11.11.2022. Thereafter, on
18.11.2022, an application under Order XXII Rule 4 CPC was filed
for substitution of legal heirs of defendant No.7 - Radha. On the
same day, an application under Section 5 of the Limitation Act was
also filed stating therein that the plaintiff came to know about the
death of defendant No.7 - Radha only on 11.11.2022 and on the
same day, filed an application to the trial court as it was date; to
the effect that very soon the plaintiff would file substitution
application and accordingly, substitution application was filed on
18.11.2022.
3. Learned counsel for the petitioners submits that as per
Article 120 of the Limitation Act, the prayer for substitution was
required to be made within 90 days of the date of death and if it
was not made within 90 days, the suit against the deceased -
defendant No.7 got abated and for setting aside abatement,
further 60 days was allowed. Learned counsel for the petitioners
further contends that the plaintiff had knowledge of death of
defendant No.7 - Radha since very inception because plaintiff had
participated in the last rituals of Radha. It was duty of the plaintiff
to substitute the legal heirs within time.
4. Learned counsel next contends that Rule 9 of Order XXII CPC
requires prayer for seting aside abatement arising out of death of
Radha in the case on hand, which was not made. Unless prayer for
substitution could have been made under Order XXII Rule 9 CPC,
[2025:RJ-JD:10161] (4 of 7) [CR-1/2024]
there is no question of setting aside abatement. Unless abatement
was set aside, the substitution could not have been allowed.
5. The provisions of Order XXII Rule 9 CPC is being reproduced
below:-
"9. Effect of abatement or dismissal. -
(1) Where a suit abates or is dismissed under this
Order, no fresh suit shall be brought on the same
cause of action.
(2) The plaintiff or the person claiming to be the legal
representative of a deceased plaintiff or the assignee
or the receiver in the case of an insolvent plaintiff may
apply for an order to set aside the abatement or
dismissal; and if it is proved that he was prevented by
any sufficient cause from continuing the suit, the
Court shall set aside the abatement or dismissal upon
such terms as to costs or otherwise as it thinks fit.
(3) The provisions of section 5 of the Indian Limitation
Act, 1877 (15 of 1877), shall apply to applications
under Sub-rule(2).
[Explanation.- Nothing in this rule shall be construed
as barring, in any later suit, a defence based on the
facts which constituted the cause of action in the suit
which had abated or had been dismissed under this
Order."
6. Learned counsel for the petitioners has relied on the
judgment of the Hon'ble Supreme Court in Gurnam Singh (D)
Thr. Lrs. & Ors. Vs. Gurbachan Kaur (D) Thr. Lrs. & Ors.
vide Civil Appeal No.5671/2017 (arising out of SLP (c)
No.26798/2011) decided on 27.04.2017.
In para 21 of the aforesaid judgment, the Hon'ble Supreme
Court observed as follows:-
"21. In our considered view, the appeal could be
revived for hearing only when firstly, the proposed
legal representatives of the deceased persons had
filed an application for substitution of their names
and secondly, they had applied for setting aside of
the abatement under Order 22, Rule 9 of the Code
and making out therein a sufficient cause for setting
[2025:RJ-JD:10161] (5 of 7) [CR-1/2024]
aside of an abatement and lastly, had filed an
application under Section 5 of the Limitation Act
seeking condonation of delay in filing the
substitution application under Order 22 Rule 3 and
4 of the Code beyond the statutory period of 90
days. If these applications had been allowed by the
High Court, the second appeal could have been
revived for final hearing but not otherwise. Such
was not the case here because no such applications
had been filed."
7. Learned counsel for the plaintiff-respondent submits that it is
consistent judicial pronouncements 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
necessary implication would include prayer for setting aside
abatement.
8. Learned counsel has relied on judgment of the Hon'ble
Supreme Court in Mithailal Dalsangar Singh & Ors. Vs.
Annabai Devram Kini & Ors. reported in (2003) 10 SCC 691
decided on 16.09.2003.
In the aforesaid case, the Hon'ble Supreme Court held
adoption of justice oriented approach, rather, technicalities of the
procedural compliance and observed in paras - 8 and 9 as
follows:-
"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 payer 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
[2025:RJ-JD:10161] (6 of 7) [CR-1/2024]
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 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."
9. The aforesaid judgment was followed in Om Prakash Gupta
Alias Lalloowa (Now Deceased) & Ors. Vs. Satish Chandra
(Now Deceased) decided along with connected appeal on
11.02.2025 reported in 2025 INSC 183.
Fact of the case in Om Prakash (supra) is that Satish
Chandra had passed away on 02.12.1996 during pendency of the
second appeal. On 02.01.1997, his legal heirs moved an
application for substitution. The High Court restored the second
appeal allowing prayer for substitution by order dated 25.05.2018,
however, by order dated 11.09.2019, the said order of restoration
was recalled for the reason that in absence of an application
[2025:RJ-JD:10161] (7 of 7) [CR-1/2024]
praying for setting aside the abatement, the second appeal could
not have been ordered to be restored.
Para No.23 of the judgment reads as follows:-
"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 Vs.
Annabai Devram Kini."
10. In view of the legal position settled above, if the impugned
order is sustained, the worst would be that the matter would be
decided after hearing the parties to the satisfaction of the litigant
that their litigation has not been thrown away on mere
technicalities. Therefore, the impugned order needs no
interference and this Civil Revision stands dismissed as devoid of
any merit.
(BIRENDRA KUMAR),J
-nitin/-
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