IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.249 OF 1998 APPEAL NO.249 OF 1998 APPEAL NO.249 OF 1998 IN CHAMBER SUMMONS NO.614 OF 1996 IN SUIT NO.536 OF 1980 Trade Impex Pvt.Ltd., a company ) registered under the Companies Act) I of 1956, having its registered ) office at Ador House, 6, K, Dubash) Marg, Bombay-400 023. )..Appellants Versus 1. Raja Mahendragirji residing at ) C/o. Begum Karim Zahir Yar Jung) G-3-347, Banjara Hills, ) Hyderabad-34 ) 2. Raja Dhairyavangirji, residing ) Gyan Bagh, Gosha Mahal ) Hyderabad-12 ) 3. Rajakumar Indira Devi residing ) at Gyan Bagh, Cosha Mahal ) Hyderabad-12 ) 4. Rajkumari Renukadevi residing ) at 17th floor, Cuffe Castle, ) Cuffe Parade, Bombay-400 005. ) 5. Tejwangir Dhairyawangir ) residing at C/o. Global ) Financial Services, 25/4, St. ) John’s Road, East, Marredpally,) Secunderabad-500 026. ) 6. Adityawangir, residing at ) A/80, Geneva Court Aprt. B-427 ) Miami 33166 U.S.A. ) 7. Humayun Dhanrajgir ) of Bombay Indian Inhabitant, ) residing at Hill Park, Powai ) Road, Mumbai-400 006 ) 8. Dr.Mrs.Durreshwar Pillai ) Now Haycraft) of Bombay Indian) Inhabitant, residing at C/o. ) Raja Dhanrajgirji Narsingiriji ) Dhanraj Mahal, Chhatrapati ) Shivaji Maharaj Marg,Bombay-39) ..Respondents (Org.Defendants) ---- : 2 : A N D APPEAL NO.251 OF 1998 APPEAL NO.251 OF 1998 APPEAL NO.251 OF 1998 IN CHAMBER SUMMONS NO.557 OF 1988 AND CHAMBER SUMMONS NO.1426 OF 1996 AND CHAMBER SUMMONS NO.159 OF 1997 IN SUIT NO.695 OF 1978 Trade Impex Pvt.Ltd., a company ) registered under the Companies Act) I of 1956, having its registered ) office at Ador House, 6, K, Dubash) Marg, Bombay-400 023. )..Appellants Versus 1. Raja Dhanrajgrirji Narsingiriji ) of Bombay Indian Inhabitant, ) residing at Dhanraj Mahal, ) Chatrapati Shivaji Maharaj Marg,) Bombay-400 039 )..Respondent (Org.Defendant) 1. Raja Mahendragirji residing at ) C/o. Begum Karim Zahir Yar Jung) G-3-347, Banjara Hills, ) Hyderabad-34 ) 2. Raja Dhairyavangirji, residing ) Gyan Bagh, Gosha Mahal ) Hyderabad-12 ) 3. Rajakumar Indira Devi residing ) at Gyan Bagh, Cosha Mahal ) Hyderabad-12 ) 4. Rajkumari Renukadevi residing ) at 17th floor, Cuffe Castle, ) Cuffe Parade, Bombay-400 005. ) 5. Humayun Dhanrajgir of Bombay ) Indian inhabitant, residing ) at Hill Park, Pawai Road, ) Bombay-400 006 )..Respondents Org.Respondents) 6. Adiyawangir, residing at ) A/80, Geneva Court Aprt. ) B-427, Miami 33166 U.S.A. ) 7. Tejwangir Dhairyawangir ) residing at C/o. Global ) Financial Services, 25/4, St. ) John’s Road, East, Marredpally,) : 3 : Secunderabad-500 026. )..Respondents Org.Addl.Respdts. ---- Mr.Aspi Chinoy, Sr.Counsel, Mr.Dinyar Madoon, Sr.Counsel with Mr.Venkatesh Dhond Counsel with Mr.Mustafa H.Doctor with Mr.Nooruddin Dhilla with Mr.Shane Sapeco with Mr.Amey Nabar i/by Hariani & Co. for the appellants. Mr.Soli Cooper, Sr.Counsel with Mr.Riyaz Chagla and Mr.Hitesh Jain i/by Thakordas & Madgavkar for respondent nos.2 to 5. Mr.Zal Andhiyanjina, with Mr.S.R.A.Shaikh & Mr.Anil A Desai for Respondent Nos.6 & 7. ---- Coram : F.I.Rebello & R.S.Mohite,JJ Coram : F.I.Rebello & R.S.Mohite,JJ Coram : F.I.Rebello & R.S.Mohite,JJ Date : 25th March, 2008. Oral Judgment :- ( Per : R.S.Mohite,J) Oral Judgment :- ( Per : R.S.Mohite,J) Oral Judgment :- ( Per : R.S.Mohite,J) 1. Both these appeals filed by Trade Impex Private Limited (hereinafter referred to as the "plaintiff") impugn a common judgment and order dated 26.11.1997 passed by the learned single Judge of this Court in Chamber Summons No.557/88 in Suit No.695/78, Chamber Summons No.614/96 in Suit No.536/80, Chamber Summons No.1426/96 in Suit No.695/78 and Chamber Summons No.159/97 in Suit No.695/78. By the impugned judgment and order the learned single Judge dismissed all the aforesaid four Chamber summons which were before him. 2. The brief facts which led to the filing of the : 4 : aforesaid four Chamber summons were as follows :- (a) That by an agreement of lease dated 14.8.1974 the appellants Trade Impex Pvt.Ltd., (hereinafter referred to as the "original plaintiff") were granted a right by one Raja Dhanrajgiriji (hereinafter referred to as the "original sole defendant") to obtain on lease, 15 flats situated in the building known as Dhanraj Mahal Building, Chatrapati Shivaji Maharaj Marg, Bombay-400 039. (b) By a further agreement of lease dated 26.9.1974 the original plaintiff obtained a right of lease in respect of 23 more flats in the said building from the original sole defendant. (c) As a dispute arose relating to lease of 15 flats covered by an agreement dated 14.8.1974, in May-1978 the plaintiff filed a Suit, bearing No.695/78, against the original sole defendant, for specific performance of the agreement dated 14.8.1974. (d) After the filing of the suit, the plaintiff learnt that a son of the original sole defendant was claiming that the suit property was a joint family property and that the other heirs of the original sole defendant were supporting his stand in order to frustrate the agreements dated 14.8.1974 and 26.9.1974. : 5 : (e) In the circumstances, the plaintiff filed another Suit No.536/78 against Raja Dhanrajgiri who was defendant no.1 in the second Suit and six other family members of whom defendant nos.2 & 3 were sons of defendant no.1, defendant nos.4 & 5 were daughters of defendant no.1 and defendant nos.6 & 7 were his grand sons. This new suit was filed for specific performance of the agreements dated 14.8.1974 and 26.9.1974. Defendant nos.2 to 7 were joined as defendants on the basis that they were wrongly contending that the property belonged to the HUF. In this suit, in the alternative, without prejudice to the first plea, a prayer was made that if the Court held that property was joint family property, the defendant no.1 as karta and manager, was entitled to enter into the agreements dated 14.8.1974 and 26.9.1974 for legal necessity and for the benefit of the estate. The prayer in the second suit was for the specific performance of the aforesaid two agreements. (f) On 24.4.1986 the defendants in Suit No.536/80 purported to enter into the deed of family compromise and arrangement to declare the suit property as HUF property. Under this deed, three persons by name Humayun Dhanrajgir, Zubeida Banu and Dr.Mrs.Durreshwar Pillao, were also given 18% share in various properties including the suit property. : 6 : (g) On learning about this deed, on 28.8.1986 the plaintiff filed Chamber summons No.666/86 in Suit No.536/80 for joining the above 3 persons as defendant nos.8, 9, & 10 in the said suit. (h) By an order dated 9.12.1986 the Chamber Summons No.666/86 taken out by the plaintiff was allowed and Humayun Dhanrajgir, Zubeida Banu and Dr.Mrs.Durreshwar Pillao were joined as defendant nos.8, 9 and 10 in Suit No.536/80. (i) On 5.5.1988 Raja Dhanrajgiriji the sole defendant in Suit No.695/78 and defendant no.1 in Suit No.536/80 died. (j) On 9.5.1988 the plaintiff learnt about the demise of Raja Dhanrajgiriji and by letters dated 9.5.1988 and 26.5.1988 he made enquiries with his Advocate as to the names and addresses of his heirs. (k) On 2.6.1988 a letter was sent by the defendants’ Advocate giving details of the heirs and legal representatives of Raja Dhanrajgiriji and these heirs were defendant nos.2 to 5 and 8 in Suit No.536/80. (l) On 6.7.1988 the plaintiff took out Chamber summons No.557/88 in Suit No.695/78 for deleting the name of the original sole defendant and impleading : 7 : the heirs of Raja Dhanrajgirji as defendants in the said suit. (m) On 8.8.1988 the plaintiff took out Chamber summons 568/88 in Suit No.536/80 for deleting defendant no.1 (who had expired) and noting that his heirs were defendant nos.2 to 5 & 8 who were already on record in the aforesaid suit. (n) On 8.8.1988 Chamber summons No.568/88 in Suit No.536/80 filed by the plaintiff was allowed. (o) On 20.9.1988 defendant no.9 in Suit No.536/80 i.e. Zubeida Banu expired and therefore, the plaintiff filed Chamber Summons No.76/1989 in Suit No.536/80 to delete her name and record that defendant nos.8 & 10 were her heirs. This Chamber summons 76/89 was allowed on 8.3.1989. (p) On 19.11.1992 Raja Dhairyavangiriji who was respondent no.2 in Chamber summons No.557/88 in Suit No.695/78 and defendant no.3 in Suit No.536/80 died. At that time the plaintiff was unaware of his death. (q) By the letters dated 18.5.1996 and 19.6.1996 the Advocate for the defendants informed the plaintiff that the aforesaid Raja Dhairyavangiriji had expired on 19.11.1992 and that defendant nos.6 & 7 in Suit No.536/80 were his only heirs. : 8 : (r) On 1.7.1996 the plaintiff filed Chamber summons No.614/96 in Suit No.536/80 to delete the name of the deceased Raja Dhairyavangiriji i.e. defendant no.3 in the suit and to note that defendant nos.6 & 7 were the heirs of Raja Dhairyavangiriji and to substitute them as defendant nos.3A and 3B. It is the appellants’ contention that while filing this Chamber summons, due to oversight/inadvertence the plaintiff’s Advocate used the title of the original unamended plaint, and defendant nos.8 & 10 in the suit i.e. Humayun and Mrs.Durreshwar were not added as respondents to the Chamber summons. (s) On 24.12.1996 the plaintiff sought to amend Chamber summons No.557/88 in Suit No.695/78 to bring on record therein, the heirs of Raja Dhairyavangiriji who was respondent no.2 in the Chamber summons by moving a draft amendment to the Chamber summons. However, in view of the objection raised by the defendants, the draft amendment was converted into a Chamber summons and the same was numbered as Chamber summons No.1426/1996. (t) On 5.2.1997 out of abundant caution, the plaintiff also filed a comprehensive Chamber summons No.159/97 in Suit No.695/78 to bring on record the heirs of both Raja Dhanrajgiriji i.e. the original sole defendant in the suit as well as Raja : 9 : Dhairyavangirji i.e. respondent no.2 in the pending Chamber summons No.557/88. (u) On 26.11.1997 Chamber summons Nos.557/88, Chamber summons No.1426/96 and Chamber summons No.159/97 in Suit No.695/78 as well as Chamber summons No.614/96 in Suit No.536/80 were all heard and dismissed by the impugned common judgment and order passed by a single Judge of this Court and in these circumstances, the present two appeals came to be filed in the year 1998. (v) On 4.9.2003 a single Judge of this Court passed an order observing that the suit stood abated. There was a further observation that in case the party succeeded in appeal against the order dated 26.11.1997, the suit would automatically get revived. (w) On 26.3.1996 an order was passed in Suit No.536/80 in which it was observed that in the judgment and order dated 26.11.1997, the single Judge has already held that the suit had abated. It was mentioned in the order that the appeal was pending. However, as no interim relief was obtained, the suit was treated to be abated and the office was directed to remove the suit from the pending list. : 10 : 3. On perusal of the impugned judgment and order passed by the single Judge dismissing the four Chamber summons, it is clear that the Chamber summons’ were dismissed by the single Judge on the ground that there was no prayer for setting aside abatement in all the aforesaid four Chamber summons. It was held that the question of sufficient cause for condonation of delay only arise if there was an application for setting aside an abatement. That in view of provisions of Order XXII Rule 4 of Code of Civil Procedure, on the deaths of Raja Dhanrajgirji and Dhairyavangirji as no application to set aside abatement was made in any of the four Chamber summons and as a joint decree would have to be passed against the defendants as joint owners, both the suits filed by the plaintiff stood abated. That Section 141 of Code of Civil Procedure would apply to the case and not Section 146. That the question of considering the sufficient cause to condone the delay did not arise at all since there was no application for setting aside abatement of suit. It was lastly held that the plea of the plaintiff, to be exempted from bringing the legal heirs of deceased defendants, could not be granted, in as much as the defendants are joint owners and there would be a joint decree. 4. On behalf of the appellants it is contended that once a Chamber summons has been made for bringing : 11 : the heirs of deceased defendant on record, there was no necessity in law to make a separate application or prayer for setting aside abatement. He contended that a prayer for bringing legal heirs on record if allowed, would have the effect of setting aside the abatement as the relief of setting aside the 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 was not called for and that the law required that setting aside of an abatement and the dismissal consequent upon an abatement would have to be considered liberally in as much as, abatement results in denying of hearing on the merits of the case. In support of the aforesaid proposition, learned Counsel relied upon the judgment of Division Bench of this Court in the case of Vijayasing D.Thorat V/s. Shivajirao N.Thorat Vijayasing D.Thorat V/s. Shivajirao N.Thorat Vijayasing D.Thorat V/s. Shivajirao N.Thorat reported in AIR 1924 Bombay 16. He also relied upon the judgment of the Apex Court in the case of Mithailal Dalsangar Singh V/s.Annabai Devram Kini Mithailal Dalsangar Singh V/s.Annabai Devram Kini Mithailal Dalsangar Singh V/s.Annabai Devram Kini reported in (2003) 10 SCC 691. He contended that in all the Chamber summons filed, there was a prayer for condonation of delay. He contended that wherever there was delay, sufficient cause had been shown but this aspect of the matter was not considered only because there was no specific prayer for setting aside the abatement of the suit. He drew our attention to order XXII Rule 10A of the : 12 : Code of Civil Procedure which cast a duty on the Pleader appearing for a party to communicate about a death of the party to the Court and the duty of the Court thereupon to give notice of his death to the other party. He contended that this procedure had not been followed. He relied upon the judgment of the Division Bench of this Court in the case of State Bank of Mysore V/s. Radheshyam Agarwal State Bank of Mysore V/s. Radheshyam Agarwal State Bank of Mysore V/s. Radheshyam Agarwal in Appeal No.1494/99 delivered on 3.4.2000 to contend that an argument that there was no satisfactory reason for condoning delay could not be advanced by a party who has failed to comply with his own obligation under Order XXII Rule 10A. 5. In so far as Chamber summons No.614/96 filed in Suit No.536/80, learned Counsel contended that the learned single Judge therein erred in construing the said Chamber summons as one under Order XXII Rule 4 of Code of Civil Procedure. The said Chamber summons was in fact, one under Order XXII Rule 2 as the heirs of the deceased defendant who were sought to be brought on record by the said Chamber summons were in fact already on the record of the suit. He contended that when this was brought to the notice of the Court, it was the duty of the Court to have the record amended and a noting made in this regard as required by order XXII rule-2 of CPC. He further contended that such a formal amendment can be made at any time. In support of this proposition he : 13 : relied upon a judgment of the Division Bench of this Court in the case of Thakkar Naranlal Jethalal V/s. Thakkar Naranlal Jethalal V/s. Thakkar Naranlal Jethalal V/s. Shivprasad Achratlal Jani Shivprasad Achratlal Jani Shivprasad Achratlal Jani reported in 1940 ILR 487. As regards the non addition of the original defendant nos.8 & 10 as parties to the Chamber summons, he contended that though that was an inadvertant mistake, yet defendant nos.8 & 10 were not necessary parties and in any case no prejudice would be caused to defendant nos.8 & 10 if the heirs of original defendant no.3 were brought on record. 6. On behalf of the respondents it was contended that a prayer for setting aside abatement was an absolute necessity in law and that the single Judge was right in dismissing the Chamber summons for want of a prayer for setting aside abatement of the suits. In support of the aforesaid proposition reliance was placed upon a judgment of the Apex Court in the case of Mahabir Prasad V/s. Jage Ram Mahabir Prasad V/s. Jage Ram Mahabir Prasad V/s. Jage Ram reported in AIR 1971 SC 742. It was secondly contended that a mere allegation about beleted knowledge of death of opposite party was not sufficient for condonation of the delay and that it was necessary to state reasons as to why the factum of death was not known. In support of this proposition reliance was placed by the Counsel on the judgment of the Apex Court in Union of India Union of India Union of India V/s. Ram Charan V/s. Ram Charan V/s. Ram Charan reported in AIR 1964 SC 215. As regards to Chamber summons No.614/96 in Suit : 14 : No.536/80 it was contended that the non addition of original defendant nos.8 & 10 as respondents in the Chamber summons was fatal. It was lastly contended that the matter be remanded to the single Judge for deciding the issues pertaining to delay and for affording a hearing to defendant nos.8 & 10 after their addition in the said Chamber summons by a suitable amendment. 7. After hearing both the parties on length and perusing the record, we are of the view that both the aforesaid appeals required to be allowed for the following reasons :- (i) The finding of the single Judge holding that a lack of prayer for setting aside abatement would be fatal does not appear to be legally correct. In the case of Vijayasingh Thorat (supra) the facts before the Division Bench of this Court were that the plaintiff died on 30.8.1920. When he died, his son was a minor. According to the law of limitation then prevailing, the suit would abate on 20.2.1921 unless an application had previously been made to put his legal representatives on record. However, before the abatement of the suit on 1.1.1921, an amendment came into force under which the period of limitation was reduced from six months to three months. The application on behalf of the minor had then to be made before 1.1.1921. On February-28, 1921 an application was made under Order XXII rule 3 : 15 : to bring the heirs of the deceased plaintiff on record but this was rejected on the ground that the suit had abated and the application had not been made under Order XXII rule 9 for setting aside the abatement. On July-30, 1921, a fresh application was made for setting aside the abatement of the suit but this was rejected on 16.6.1922 on the ground of delay. On these facts, the Division Bench of this Court held that the first application dated 28.2.1921 with a prayer to bring heirs on record ought to have been considered as an application to set aside abatement. It was held that a mistake had been committed in dealing with the first application dated 28.2.1921. On such reasoning, the Division Bench set aside the abatement of the suit and placed the minor, through his next friend on record. This ruling of the Division Bench of this Court suggested that the prayer for setting aside the abatement even though not expressly made, can be implied in the application for bringing legal representatives on record preferred under Order XXII Rule 3 (1). (ii) The position in this regard has now been made abundantly clear by the judgment of the Apex Court in the case of Mithailal (supra). In the aforesaid case the Supreme Court was seized of a question about the effect of not specifically praying for setting aside abatement in an application for bringing heirs on record. In paragraphs-8 & 9 of : 16 : the judgment the Apex Court observed 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 theother 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 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 : 17 : 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 : 18 : deserves to be given weight, and once arrived at would not normally be interfered with by superior jurisdiction." (iii) On this question reliance was placed on behalf of the respondents on the judgment of the Apex Court in Mahavir Prasad (supra). In particular, reliance was placed on the observations made in paragraph-6 of the judgment to the following effect :- 6.......................... where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act the proceeding will not abate." . In our view, the aforesaid observation in no way help the respondents’ contention. These observations are not inconsistent with the observation of the Apex Court in the case of Mithailal (supra) which specifically deals with a : 19 : case where there is no prayer for setting aside abatement in an application for bringing heirs on record. 8. In so far as Chamber summons No.1426/96 in Suit No.695/78 is concerned, in our view, the short delay in the filing of the said Chamber summons deserves to be condoned. It is seen that though Raja Dhanrajgiriji expired on 19.11.1992 the factum of his death was informed to the