TMI Blog2003 (9) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... ondents. On 5th April 1997 Bharat Singh, one of the plaintiffs expired. The appeal filed by the defendants came up for hearing before the Division Bench of the High Court. On 17th June,. 2000, which was the date of hearing, a statement appears to have been made before the High Court that Bharat Singh had expired. The counsel for the plaintiff-respondents wrote a letter to the two surviving plaintiffs informing them of the factum of death of the third plaintiff and the need for taking steps of bringing the legal representatives on record. On 29th June 2000 the legal representatives of the deceased plaintiff took out chamber summons on the Original Side of the High Court for being brought on record in the suit in place of the deceased plaintiff. The defendants in the suit objected to the prayer for impleadment submitted that the prayer was hopelessly barred by time and that the suit had abated. It was also submitting that in as much as the cause of action arising to the three plaintiffs was only one, the death of one of plaintiffs had resulted in the suit having abated in its entirety and, therefore, the prayer made by the legal representatives of the deceased plaintiff for being bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regards the plaintiff no. 1; there was neither a prayer made nor an order made by the Learned Single Judge setting aside the abatement of the suit in its entirety, and therefore, so far as the other two surviving plaintiffs are concerned, for failure on their part to make a prayer for setting aside the abatement, the suit continues to remain abated as against them, and therefore, the prayer, as also the order passed on that prayer, for setting aside that abatement only partly was bad in law and did not enure to the benefit of the surviving plaintiffs. The findings so arrived at by the Division Bench have been vehemently attacked by the learned counsel for the appellants. Having heard the learned counsel for the parties we are satisfied that the appeal deserves to be allowed and the judgment of the Division Bench deserves to be set aside. 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tent. The Letters Patent do not exclude or override the application of Section 104 read with Order 43 Rule 1 CPC to internal appeals within the High Court. Even if it is assumed that Order 43 Rule 1 does not apply to Letters Patent appeals yet the principles governing those provisions would apply by a process of analogy. A perusal of Section 104 read with Rule 1 of Order 43 of the CPC shows that while an appeal is provided against an order refusing to set aside the abatement or dismissal of a suit; there is no appeal provided against an order whereby the abatement or dismissal of a suit has been set aside. Whether the trial judge passed an order setting aside an abatement or allowed substitution of the legal representatives, no valuable right of parties was decided. The constitution of the suit was rendered good and the suit proceeded ahead for being tried on merits. Such an order does not amount to judgment within the meaning of Letters Patent. The learned counsel for the appellant has invited attention of the Court to the Full Bench decision of the Calcutta High Court in Nurul Hoda and Ors. v. Amir Hasan and Anr., AIR (1972) Cal. 449 and the Division Bench decisions of the P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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