IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 337 of 2009. Date of decision: 14.3.2011. Nek Ram & Anr. …Petitioners. Versus Krishna Kumari & Ors. …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No For the petitioners: Mr. Ajay Sharma, Advocate. For Respondents No. 1 to 3 Ms. Vidushi Sharma, Advocate. For Respondents No.4 to10, Mr. Parveen Chandel, Advocate. 14 to17,19,20 &22 to 27 Deepak Gupta, J. (Oral) 1. This petition is directed against the order dated 26.2.2009 whereby the learned Trial Court has allowed the application for bringing on record the legal representatives (LRs) of deceased respondent No.3-Chuhru Ram and deceased respondent No.4-Mali Ram. 2. The undisputed facts are that the contesting respondents had filed a suit which was decreed. Appeal filed by the present petitioner was dismissed, but in second appeal which 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. was pending before this Court, it transpired that some : 2 : respondents had died before filing of appeal in this Court. The matter was remanded to the Lower Appellate Court. The Lower Appellate Court observed that some persons had died during the pendency of suit itself and it again remanded the matter. Thereafter the present applications for bringing on record the LRs of deceased respondent No.3-Chuhru Ram and deceased respondent No.4-Mali Ram and condoning the delay in filing such applications were filed. These applications have been allowed. Hence the present petition. 3. The main objection of Mr. Ajay Sharma is that there is no order setting aside the abatement of suit. Once abatement is there, proceedings cannot continue without setting aside the abatement. He also submits that no prayer for setting aside the abatement has been made in the petition. 4. Technically speaking, Mr. Ajay Sharma is absolutely right. An order for bringing on record the legal representatives after the expiry period of limitation can only be passed if the abatement is set aside, but here we are dealing with a case which was instituted in the year 1995 and was remanded back by this Court specifically on the ground that the respondents No. 3 and 4 had died during the pendency of the suit. It was for the Court which was seized of the matter when the death took place to have decided the question of abatement. Therefore, can we say that the parties were at fault when the lawyer(s) drafting the application despite such order of the Court did not make prayer : 3 : for setting aside the abatement. It is true, as pointed out by Mr. Ajay Sharma, that there is no such prayer. However, the question which arises for consideration is whether a party should suffer for the sheer negligence of the counsel who had not made such a prayer despite the fact that this was the only reason for setting aside the decree in favour of the plaintiff. 5. According to the averments made in the application, the plaintiff was not aware about the death of the defendants since she resides at Jallandhar. Taking into consideration this aspect of the matter and also with a view to have the dispute decided on merits, I am of the view that the application filed by the plaintiff should have been allowed, but as pointed out above an order should have been passed setting aside the abatement, if any, in the suit. Therefore, the petition is rejected. However, it is clarified that the order of the learned Trial Court is modified to the limited extent that it shall also be read into the order that abatement, if any, is set aside and thereafter the LRs have been brought on record. Petition is accordingly dismissed with no order as to costs. (Deepak Gupta) Judge March, 14,2011. (Krn Guleria)