1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 382 OF 2007. Rekha Laxmikant Kapkar & Ano. Vs. Sudha Manikrao Kapkar & Ors. -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. -------------------------------------------------------------------------------------------------------------------------------------- Shri Apurva De Adv. for petitioner. Shri B. K. Pal Adv. for respondents. CORAM: J. H. BHATIA, J. DATED: 16 MARCH, 2009. Heard learned counsel for the parties. Respondents 1 to 5 before this Court are the legal representatives of the original plaintiff in Regular Civil Suit No. 560 of 2003 and the present petitioners are some of the legal representatives of the original defendant in the said suit. Plaintiff had filed a suit for partition and separate possession of certain joint family property. Plaintiff died on 2 27.09.2005 and the defendant also died on 06.10.2005. On 09.01.2006 legal representatives of the plaintiff filed two applications. By one application they sought to bring the legal representatives of the plaintiff as well as defendant on record and by another application they prayed for condonation of delay in filing application for bringing legal representatives of the plaintiff as well as defendant. Both applications were heard together and by impugned order dated 09.01.06 both the applications are allowed. 2. This petition is filed by some of the legal representatives of the original defendants only on the ground that the legal representatives of the deceased plaintiff or defendant should be brought on record within 90 days from the date of death and if they are not brought on record the suit abates and application for setting aside abatement 3 can be made within 60 days from the date of abatement. According to the learned counsel for the petitioners no application was made for setting aside the abatement and without passing any order for setting aside abatement the application to bring legal representatives of the plaintiff as well as defendant were allowed. The learned counsel contends that this is not permissible under law. 3. Technically learned counsel for petitioner appears to be right because plaintiff died on 27.09.05 and on expiry of 90 days on 26.12.05 the suit would abate if the legal representatives of the plaintiff were not brought on record on or before that date. Similarly as the defendant died on 06.10.05 the suit would abate on expiry of 90 days from that date if the legal representatives of defendant were not brought on record and therefore as provided under Article 121 of the 4 Limitation Act an application to set aside abatement would be made within 90 days. However, even though separate application for setting aside abatement was not moved, the application for bringing legal representatives along with application for condonation of delay was moved within 60 days from the date on which the suit would have abated either on death of the plaintiff or on death of the defendant. Learned trial Court allowed both the applications and thus condoned the delay and allowed the legal representatives of the plaintiff as well as defendant to be brought on record. Only the technicality of making separate applications for setting aside abatement and of passing an order on that was not completed. In Mithailal Dalsangar Singh and others Vs. Annabai Devram Kini and others AIR 2003 Supreme Court 4244, almost an identical question 5 had arisen and their Lordships observed as follows in para 8: “Inasmuch as the abatement results in denial of hearing on the merits of the case the provisions 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 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 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 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 6 for.” 4. In my considered opinion the present case is squarely covered by the above observations. In view of this, the objection taken by the petitioner in the present petition is too technical to call for any interference in the impugned order. In the result the petition stands dismissed. JUDGE svk