1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2322 OF 2007 Diwali Shivji Dharod & Ors. .. Petitioners Versus Sion Kamgar CHS Ltd. & Ors. .. Respondents Mr.S.M.Khaire for petitioners Mr.R.S.Tripathi for respondents CORAM : S.C.DHARMADHIKARI, J. DATE : 22nd April 2008 P.C. . Rule. Respondent No.1 waives service. Respondent No.1 alone is the contesting party. By consent rule is made returnable forthwith. Heard parties. 2. By this petition under Article 226 of the Constitution of India, the petitioners challenge the order dated 16th June 2007 delivered by the 2 Coop.Appellate Court in Appeal From Order No.212 of 2006. By the order under challenge, the appellate court has reversed the order dated 13th October 2006 passed by the Coop.Court on the application preferred by the petitioners for impleading them as heirs and legal representatives of the deceased disputant as parties to the proceedings, namely, Dispute No.CC/III/563/87. The Appellate Court reversed the order allowing Misc.Application No.13 of 2005. This Application was preferred by the petitioners - Orig.Applicants. 3. It is not necessary for me to go into detailed facts inasmuch as it is not disputed that one Devkabai was original disputant and she instituted the above Dispute in the Coop.Court at Mumbai. The first respondent to this petition is original opponent. 4. It is also not disputed that Devkabai 3 expired on 27th August 2001. It is also not in dispute that an application for impleading her heirs and legal representatives was made on 8th September 2004 and that application was rejected by the Judge to whom it was assigned. In the order dated 17th December 2004, while rejecting the application, it is observed by the Coop.Court that the application before the Coop.Court does not mention anything about the knowledge of the death and the applicant failed to establish circumstances beyond their control to collect the details about the Heirs and Legal Representatives and bring the same before the Coop.Court, on time. The applicant further failed to establish that he was the only heir of the deceased and, therefore, the application was rejected. It is also observed that the applicant failed to point out cause for delay in filing an application. 5. A second application was filed being Misc.Application No.13 of 2005 in that dispute 4 and this time the applicants were one Diwali Shivji Dharod, the present petitioner together with other parties. 6. An affidavit was filed by the applicant No.3 Vipul Dharod and he pointed out that the applicant No.1 is daughter in law of deceased disputant and mother of applicant Nos. 2, 3 and 4. Applicant Nos. 2 to 4 are therefore grand sons/daughter of the deceased disputant. Respondent Nos. 2 and 3 to this application are grand sons of the deceased disputant. 7. After referring to the nature of the dispute, it is urged that the original disputant expired on 27th August 2001. She died intestate leaving behind her the legal heir and legal representative as per the Hindu Succession Act. Thereafter, reasons for the date of death and knowledge of death could not become available, been set out. Further, the earlier application 5 and its rejection also is pointed out and, thereafter, it is urged that the applicants were unaware of the adjourned date of the earlier application and its subsequent dismissal. It is in such circumstances that the relief was prayed that the delay be condoned and heirs be allowed to be brought on record. This application was opposed and by an order of the Coop.Court, the same came to be allowed. The Coop.Court while allowing the same has observed thus:- "7. It is admitted fact that, previous application to take the legal heirs on record was filed by only one heir namely Diwali Dharod. All these applicants were not made party in the said application. While disposing off the said application on merit, my Ld.predecessor came to the conclusion that, all other heirs were not made party coupled with the observation that the 6 applicant has failed to show reasonable cause for delay. Therefore, the previous application was not decided on the sole ground of delay in filing the application. But, such delay was considered coupled with the fact that all the legal heirs were not party. In this application, all legal heirs have been made party. Therefore, at the most the previous order of this Court cannot come in the way of other legal heirs who were not party to the previous application. Therefore, on this sole ground, if the application is rejected, then, applicants will suffer irreparable loss and prejudice will be caused to them. Therefore, it is necessary to hear all these legal heirs before passing any order. Hence, this application is liable to be heard in the in the interest of justice. Hence, I answer point No.1 in 7 the affirmative." 8. After observing that the application is maintainable, the learned Judge refers to the liberal principles that must be applied in deciding such applications and by directing the applicants to pay costs, he permitted impleadment of the applicants as parties to the original dispute. This order was challenged by the society in appeal and the appellate order reverses the same. 9. The learned President of the Coop.Appellate Court has been influenced to a great extent by the fact that earlier application for identical relief has been rejected. Further, the delay in making the application has also influenced the learned President. It is in such circumstances that the original applicants who are now impleaded as disputants/respondents are before me in writ jurisdiction. 8 10. I have heard Mr.Khaire for petitioners and Mr.Tripathi for respondent No.1. I have perused with their assistance the petition and annexures thereto, including affidavits filed to oppose and in rejoinder. 11. In A.I.R. 2003 S.C. 4244 (Mithailal Dalsangar Singh and Ors Vs. Annabai Devram Kini and Ors.), the Supreme Court has observed that abatement results in denial of hearing on merits of the case and therefore, the provision of abatement is 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 a abatement may in substance be construed as prayer for setting aside abatement. So also, a prayer for setting 9 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. 12. The Supreme Court has emphasised the fact that 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 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 request to bring them on record or any other applicant’s request can 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 the abatement though not asked for in so many words is in effect being 10 actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for. The courts have to adopt a justice oriented approach. The term "sufficient cause has to be considered in the manner laid down in this decision. If any reference is necessary, paras 8 and 9 of this decision may be seen. 13. Applying the tests laid down in the said decision to the facts of the present case, to my mind, the learned President has adopted too technical and pedantic approach, rather his approach is hyper-technical. Mr.Tripathi has urged that the application preferred by the petitioners was not maintainable on four counts. His first contention was that the earlier application was rejected by a reasoned order and, therefore, second application was not maintainable. His second contention is that there is no sufficient case made out for 11 condoning the delay in making an application for bringing the heirs and legal representatives on record. His third contention is that the learned President is right in the conclusion that the second application was not maintainable and merely because some more names are added, does not mean that the application should have been entertained. All these are matters which governed by the principles of resjudicata is the last contention of Mr.Tripathi. 14. Each of these contentions have no merit. In the instant case, earlier application and the order passed thereon is perused by me. The learned Judge who rejected the earlier application by order of 17th September 2004 has observed that the details of all legal representatives and heirs are lacking. There is a single application. Further, the delay has not been satisfactorily explained by the applicant. This by itself does not mean that the second 12 application after collecting all details and impleading of all heirs was not maintainable. In the peculiar facts of this case when the earlier application was made by one applicant whereas the second application being Misc.Application No.13 of 2005 was filed by four applicants and others were impleaded as respondents, then, the principles of res judicata have no application. Further, the application sets out all details which could not be set out in the earlier application. Thus, circumstances beyond the control of the applicant in getting details are set out. Further, all the ingredients which go to demonstrate the sufficient cause in not being able to make application earlier, are also set out. In such circumstances, the last contention of Mr.Tripathi has no merit and must fail. 15. As far as other contentions are concerned, from a perusal of the application filed in the trial court on which the order of 13 the Coop.Court has been passed would demonstrate that the dispute was dismissed on 10th January 2005 as prayed in the application. That apart, the delay was sought to be condoned on the grounds which are more specifically set out in paras 6 to 9 of the application. It is not possible to hold that the application lacks bonafides or that the applicants were totally negligent in pursuing the matter. In such circumstances, without further details the applicants could not have approached the court for the same reliefs. The Coop.Appellate Court lost sight of the fact that the parties deserve a chance of adjudication on merits. Normally and ordinarily, such a chance must be given and opportunity afforded unless the case comes within the parameters laid down by the Supreme Court. In the entire reasoning of the lower appellate court, it does not appear to me that the Coop.Appellate Court has applied its mind to the case from this angle. The approach as termed 14 above is hyper technical. There was no reason to interfere with the order of the trial court. Merely because another view is possible, the discretion exercised by the trial court should not have been interfered with. In fact by imposing additional conditions and costs, the lower appellate court could have maintained the order. 16. In the above circumstances, the order of the lower appellate court cannot be sustained and it is accordingly quashed and set aside. However, petitioners must pay additional costs quantified at Rs.5000/- within three weeks from today. Needless to clarify that the amendment which is being permitted to be carried out would be in the following term. 17. Applicants who are petitioners before me would alone be shown as Disputants in the cause title of the dispute and they shall replace the 15 original deceased disputant . The parties who are shown as Respondents to Misc.Application 13 of 2005 shall be shown as opponents to the dispute. 18. Petition allowed in the above terms. Rule is made absolute accordingly. (S.C.Dharmadhikari, J)