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Mohatta Brothers Vs. Sheth Chaturbhaidas Chimanlal and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtGujarat High Court
Decided On
Case NumberA.F.O. Nos. 361 to 363 of 1977
Judge
Reported inAIR1982Guj96; (1982)1GLR585
ActsCode of Civil Procedure (CPC), 1908 - 0rder 22, Rule 9(2) and 9(3); Limitation Act, 1963 - Sections 5
AppellantMohatta Brothers
RespondentSheth Chaturbhaidas Chimanlal and ors.
Appellant Advocate R.K. Shah, Adv.
Respondent Advocate B.S. Trivedi, Adv.
Cases ReferredAhmedabad v. Maganlal
Excerpt:
limitation - delay - section 10 and order 22 rules 9 (2) and 9 (3) of code of civil procedure, 1908 and section 5 of limitation act, 1963 - appellants filed suit - suit stayed under section 10 till disposal of earlier suit in which same relief claimed in appeal by high court - during that period one of respondent died - applications for setting aside abatement after condoning of delay and for bringing legal representatives of deceased on record - whether trial court justified in dismissing application for condonation of delay - appellants did not take immediate steps to apply for setting aside abatement after they learnt about demise of one of respondent because suit was pending under section 10 and not likely to proceed till disposal of appeal by high court - applications for bringing.....1. the appellants, messrs mohatta brothers, a partnership firm, filed three suits, being civil suits nos. 106 of 1961, 314 of 1961 and 33 of 1963, in the city civil court at ahmedabad against the respondents for diverse reliefs. in suit no. 106 of 1961 it was prayed that if the court comes to the conclusion that the relationship between the plaintiff and the defendants was that of partners, the court should dissolve the firm of messrs chhaturbhuj kharavala mohatta and company and order accounts to be taken. a similar relief was claimed in civil suit no. 33 of 1963 also. in suit no. 314 of 1961 also the relief claimed was for the dissolution of the said partnership firm and for a share in the managing agency commission and for rendition of accounts. all these three suits were stayed under.....
Judgment:

1. The appellants, Messrs Mohatta Brothers, a partnership firm, filed three suits, being Civil Suits Nos. 106 of 1961, 314 of 1961 and 33 of 1963, in the City Civil Court at Ahmedabad against the respondents for diverse reliefs. In Suit No. 106 of 1961 it was prayed that if the Court comes to the conclusion that the relationship between the plaintiff and the defendants was that of partners, the Court should dissolve the firm of Messrs Chhaturbhuj Kharavala Mohatta and Company and order accounts to be taken. A similar relief was claimed in Civil Suit No. 33 of 1963 also. In Suit No. 314 of 1961 also the relief claimed was for the dissolution of the said partnership firm and for a share in the managing agency commission and for rendition of accounts. All these three suits were stayed under S. 10 read with S. 151 of the Civil P. C. in view of the pendency of First Appeal No. 984 of 1960 in the High Court arising out of the dismissal of Civil Suit No. 205 of 1954. The said First Appeal came to be dismissed by this Court on 14th Oct., 1976. It, therefore, appears that the aforesaid three suits were stayed from 1963 and onwards till the disposal of the appeal by the High Court on 14th Oct., 1976.

2. It appears that while the suits were so stayed, one of the defendants Sheth Bhagwandas Tejaji Kharawala expired on 28th Mar., 1974. He was also a party to the First Appeal No. 984 of 1960 pending in the High Court. It appears that Shri Rasiklal Mehta, the power-of-attorney-holder of the plaintiffs in the aforesaid appeal made an application in the High Court for bringing on record the, legal representatives of deceased Bhagwandas Tejaji Kharawala on the allegation that he learnt about his demise for the first time somewhere in the first week of Oct., 1974. He, therefore, prayed that the, delay in filing the application should be condoned, the abatement should be set aside and the legal representatives of Bhagwandas Tejaji Kharawala should be brought on record in the appeal which was then pending before the High Court. It is common ground that the High Court allowed that application and thereupon the legal representatives of the deceased were brought on record. Almost two years thereafter the appeal was disposed of by the High Court on 14th Oct., 1976.

3. So far as the three suits which were pending in the City Civil Court are concerned, as stated earlier, they were stayed under S. 10 read with S. 151 of the C. P. C. as the First Appeal No. 984 of 1960 arising out of the dismissal of Civil Suit No. 205 of 1954 was pending in the High Court. During the subsistence of the stay, Shri Rasiklal Mehta, the power -of-attorney-holder of the plaintiffs in the said three suits filed an application on 29th Nov., 1974 in Civil Suit No. 314 of 1961 and on 2nd Dec., 1974 in the other two Civil Suits for bringing the legal representative of deceased, Bhagwandas on record. In the said three suits he also filed separate applications for condonation of delay under S. 5 of the Limitation Act, 1963, read with 0. 22, R. 9 (3) of the C. P. C. In the said three applications he stated that he learnt about the death of Bhagwandas for the first time on 28th Nov., 1974 when a Purshis giving intimation about his death came to be filed in Suit No. 314 of 1961 by the learned advocate representing the deceased. It is clear from the above undisputed facts that even though the defendant Bhagwandas died on 28th Mar., 1974, the applications for bringing his legal representatives on record were not made till 29th Nov., 1974 in Suit No. 314 of 1961 and on 2nd Dec., 1974 in the other two suits. Thus all the three applications for bringing the legal representatives of the deceased on record were filed after a lapse of ninety days from the date of demise and also after a lapse of further sixty days during which period an application for setting aside the abatement should have been made under 0. 22, R. 9 (2) of the C. P. C., on the ground that intimation about the death was first received on 28th Nov., 1974 on the filing of the Purshis in Civil Suit, No. 314 of 1961 by the learned advocate representing the deceased in the aforesaid three suits.

4. These applications for setting aside the abatement after condoning the delay and for bringing the legal representatives of deceased Bhagwandas on record were hotly contested by defendant No. 1 Sheth Chaturbhujdas Chimanlal mainly on the ground that no such purshis giving intimation about the demise of Bhagwandas was filed in Civil Suit No. 314 of 1961 on 28th Nov., 1974 and that the statement of the deponent Rasiklal Mehta that he learnt about his demise for the first time on that date was clearly in conflict with the ground mentioned by him in his affidavit filed in support of a similar application filed in First Appeal No. 984 of 1960 in the High Court, The main grounds on which the first defendant in the three suits resisted the applications have been stated by the learned trial Judge to be: (a) the plaintiffs had knowledge of the death of Bhagwandas on the date of his demise; (b) that the application is not bona fide; (c) that the Court has no jurisdiction to entertain such an application; and (d) that the application was not properly signed and verified by Rasiklal Mehta, holder of the power-of-attorney of the plaintiffs.

5. The learned trial Judge came to the conclusion that the ground given in the applications for condonation of delay was false, in that, it was in conflict with the ground given by the deponent in a similar application made in First Appeal No. 984 of 1960 in the High Court and since no other ground was given by the deponent in this application, the deponent had failed to make out a case for condonation of delay under 0. 22, R. 9 (3) of the C. P. C. read with S. 5 of the Lim. Act, 1963. The learned trial Judge after considering the case law on the subject came to the conclusion that in a suit for dissolution and accounts of a partnership firm or in a suit for accounts in respect of commission earned by one of the partners, each and every partner is a necessary party since the share of each partner will have to be determined and thereafter on taking of accounts liabilities fixed in the proportion in which the shares were held by the partners and in the absence of any one of the partners the suit cannot proceed and hence the suit must abate in toto against the surviving defendants also. In that view that the learned trial Judge took, he held that all the three suits had abated against the deceased defendant and, therefore, they stand terminated. in their entirety against the rest of the defendants also. It is this order passed by the learned trial Judge on 27th April., 1977 in the aforesaid three suits which is the subject matter of the present three appeals.

6. An application to bring the legal representatives of deceased defendant on record must be made within ninety days from the date of the death of the deceased. If no such application is made within the prescribed period, the suit abates under 0. 22, R. 4 (3) of the C. P. C. It is, however, open to the plaintiff to applying within sixty days from the date of abatement under 0. 22, R. 9 (2) for setting aside the abatement. If no such application is made within sixty days, the Court may under S. 5 of the Lim. Act entertain an application for setting aside the abatement in virtue of 0. 22, R. 9 (3) of the Code. This is in brief the requirement of 0. 22, R. 4 and R. 9 of the Code which are relevant for our purpose. It may also be pointed out that by the Amendment Act of 1976, sub-rules (4) and (5) were added to R. 4 of 0. 22 of the Code. Sub-rule (4) lays down that the Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place. Sub-rule (5) lays down that where the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Lim. Act, 1963, and the suit has, in consequence, abated, and the plaintiff applies after the expiry of the period specified therefore in the Lim. Act, 1963, for setting aside the abatement and also for the admission of that application under S. 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in that behalf, the Court shall, in considering the application under the said S. 5, have due regard to the fact of such ignorance, if proved. Admittedly on the date of the decision of the trial Court this amendment had become effective. The amendment being in regard to procedural matters, would therefore be retrospective in operation.

7. Article 120 of the Lim. Act, 1963, lays dawn that an application to have the legal representatives of a deceased defendant, made a party shall be filed within ninety days from the date of death of the defendant. There is no dispute that within the said period of limitation no application was filed under 0. 22, R. 4 of the Code. Sub-rule (3) of R. 4 of 0. 22 next provides that where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. In the instant case since no application was made within the prescribed period of ninety days, the suit must be taken to have abated. Sub-rule (2) of R. 9 of 0. 22 next provides that the plaintiff may apply for an order to set aside the abatement and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. Art. 121 in the Schedule to the Lim. Act, 1963, provides that such an application shall be made within sixty days from the date of abatement Admittedly within the said period of limitation no application for setting aside the abatement was made by the plaintiffs in the aforesaid three suits. Sub-rule (3) of R. 9 of 0. 22 next provides that the provisions of S. 5 of the Lim, Act shall apply to applications under sub-rule (2). That means that under sub-rule (3) if the plaintiff can satisfy the Court that he had sufficient cause for not making the application to set aside the abatement within sixty days from the date of abatement, the Court would have discretion to set aside the abatement even after the period of sixty days has expired.

8. One submission which was made by Mr. Trivedi, the learned advocate for the first respondent in these three appeals, may be disposed of at this stage. He pointed out that in the application filed under S. 5 of the Lim. Act there was no prayer for setting aside the abatement and, therefore, it could only be construed to be an application for condoning delay in applying under 0. 22, R 4 for bringing the legal representatives of the deceased on record. The submission was that the application for condonation of delay being related to a matter covered by 0. 12, R. 4 of the Code, an Appeal from Order could not lie. In my opinion, the argument is of a hypertechnical nature. Sub-rule (13) of R. 9 of 0. 22 in terms states that after the expiry of the period of sixty days prescribed by sub-rule (2) of R. 9, an application can be filed invoking the provisions of S. 5 of the Lim. Act. It is in cases where an application is filed after the expiry of sixty days from the date of abatement that an application under S. 5 of the Lim. Act is contemplated. There is no provision for condonation of delay in making the application for setting aside the abatement except the provision found in 0. 22, R. 9 of the Code. If no application is made within a period of ninety days under 0. 22, R. 4 (1) of the Code, the suit abates as against the deceased defendant by virtue of sub-rule (3) of that Rule. Such an abatement can only be set side by resorting to the procedure laid down in R. 9 of that Order. If the application for setting aside the abatement is made within sixty days from the date of abatement, that application would be governed by sub-r. (2) of R. 9 of 0. 22 but if the application is made after the period of sixty days has expired, the plaintiff can apply under sub-r. (3) for setting aside the abatement and on the abatement being set aside, the Court would be empower ed to allow the application under 0. 22, R. 4 (1) of the Code. Therefore, the only procedure which the plaintiff can follow after the suit has abated under 0. 22, R. 4 (3) is that which is set out in R. 9 of that Order. An application under S. 5 of the Lim. Act can be made only after the suit has abated and a period of sixty days from the date of abatement has elapsed. Such an application can only be to set aside the abatement on sufficient cause being shown by the plaintiff. Therefore, the contention of Mr. Trivedi that since there is no specific prayer in the application made under S. 5 of the Lim. Act for setting aside the abatement, it cannot be construed to be an application under sub-rule (3) of R. 9 of 0. 22 is clearly a hypertechnical one and unsustainable. Therefore, the preliminary objection raised by Mr.Trivedi on the question of maintainability of these three appeals must be brushed aside.

9. Section 5 of the Lim. Act provides that any application, other than an application under any of the provisions of 0.21of the Code may be admitted after the prescribed period if the applicant satisfies the Court that he had sufficient cause for not making the application within the period prescribed by law. Therefore, in order to succeed the plaintiffs must show that they had 'sufficient cause' for not preferring an application for setting aside the abatement within the period prescribed for making an application under sub-rule (2) of R. 9 of 0. 22 of the Code. According to that sub-rule the abatement can be set aside if it is proved that the plaintiff was prevented by any sufficient cause from continuing the suit. In the present appeals it is the case of the plaintiffs that they could not apply within the period of limitation became they learnt about the demise of Bhagwandas on 28th Nov., 1974. Now it is an admitted fact that in First Appeal No. 984 of 1960 the ground given for not making an application for bringing the legal representatives of respondent Bhagwandas on record was that they learnt about his demise somewhere in the first week of Oct., 1974. There can be no doubt, therefore, that in the application made before the High Court, the date of knowledge of the demise of Bhagwandas was stated to be the first week of Oct., 1974 whereas in the applications made in the three suits pending in the City Civil Court, the statement made was that the deponent learnt about his demise on 28th Nov., 1974. Obviously these two statements made on different occasions by the same deponent Rasiklal are self-contradictory. If Rasiklal as per his statement made in the High Court in First Appeal No. 984 of 1960 learnt about the demise of Bhagwandas somewhere in the first week of Oct., 1974, his subsequent statement in the three suits that he learnt about his demise for the first time on 28th Nov., 1974 cannot be accepted as correct. That is why the learned trial Judge has come to the conclusion that the statement by Rasiklal that he learnt about the demise of Bhagwandas for the first time on 28th Nov., 1974 when a Purshis was filed in Civil Suit No. 314 of 1961 is 'false'. There cannot be any doubt that the subsequent statement made by Rasiklal that he derived knowledge about the death of Bhagwandas for the first time on 28th Nov., 1974 is inaccurate. This inaccuracy in his statement was also highlighted in the affidavit-in-reply in Civil Application No. 2500 of 1974 in First Appeal No. 984 of 1960 before the High Court. In the affidavit-in-rejoinder while dealing with this contention the deponent Rasiklal Mehta stated-

'I submit that when an application for bringing on record the heirs of the deceased respondent No. 3 in the aforesaid First Appeal was made, civil suits between these parties were pending in the City Civil Court, Ahmedabad and therein also applications for bringing on record the heirs of the deceased respondent No. 3 in that appeal, who was the defendant in these suits, were also required to be made. I submit that at that time I might not have informed my advocate in the City Civil Court about the contents of the aforesaid Civil Application for heirs and as such, the learned advocate in the lower Court had made out a different ground for condonation of delay in the application made in the lower Court. I submit that I am an old man of about 70 years and suffering from occasional attacks of blood pressure and heart trouble and during one such attack, I might not have properly read the application made in the lower Court for bringing un record the heirs of the deceased Bhagwandas Kharavala and also the affidavit made by me in its support. I submit that the contradictions and inconsistency seem to have arisen because of a bona fide mistake and oversight on my part, owing to my old age and peculiar ailment.'

It was, however, conceded by the deponent that he had learnt about the demise of the defendant Bhagwandas somewhere in the first week of Oct., 1974. The High Court accepted this statement of the deponent and accordingly condoned the delay, set aside the abatement and permitted the legal representatives of the deceased to be brought on record. Therefore, even though the learned trial Judge is right that the statement of the deponent Rasiklal in the three suits that he learnt about the demise of the defendant Bhagwandas for the first time on 28th Nov., 1974 is not correct, the learned trial Judge ought to have proceeded on the basis that he had derived knowledge about the death of Bhagwandas somewhere in the first week of Oct. 1974. The learned trial Judge, however, dismissed the applications on the ground that only one cause was shown for condonation of delay in all the three applications and that cause was found as a matter of fact to be 'false' and, therefore, the delay could not be condoned. However, it is found from the above quoted explanation of the deponent in his affidavit-in-reply before the High Court that when he signed the affidavits filed in the City Civil Court in the aforesaid three suits, he did not verify the correctness of the date of knowledge because of his ill-health. There is nothing on the record to show that he had knowledge about the death of Bhagwandas prior to the first week of Oct, 1974.

10. The next question which must be considered is, whether the delay in filing the applications after the first week of Oct. 1974 can be excused. If the deponent Rasiklal learnt about the demise of the defendant Bhagwandas in the first week of Oct. 1974, we have to consider why he did not make an application for condonation of delay under Section 5 of the Lim. Act r./w. sub-rule (3) of Rule 9 of 0. 22 of the Code till 29th Nov. 1974 and 2nd Dec., 1974, respectively. For this delay the reason given out is that the suits were stayed under Section 10 r./w. S. 151 of the Code because of the pendency of First Appeal No. 984,of 1960 in the High Court. Admittedly the stay operated at least up to the date of the disposal of the First Appeal on 14th Oct., 1976. There can, therefore, be no doubt that while the applications were made on 29th Nov., 1974 and 2nd Dec., 1974, the stay was in operation in all the three suits pending before the trial Court. That is why the plaintiffs did not realise the urgency of filing applications for bringing the legal representatives of deceased Bbagwandas on record immediately after they learnt about his demise. By the amendment in The Code the ground about ignorance of the death of the defendant is now statutorily recognised as a valid ground for condoning the delay and setting aside the abatement.

11. Relying on the decision of the Supreme Court in Union of India v. Ram Charan, AIR 1964 SC 215, Mr. Trivedi submitted that an abatement ought not to be lightheartedly set aside as a matter of course because to do so would tantamount to taking away the valuable right which has vested in the respondent No. 1 on the termination of all the three suits. At the same time the Supreme Court has observed that while on The one hand the Court should not lightheartedly set aside an abatement, on the other hand it should not be over-strict in requiring proof why the application for substitution of legal representatives or for setting aside the abatement was not made in time. Mr. Trivedi reinforced his argument by inviting my attention to the decision of Divan, J. (as he then was), in Devendra prasadji v. Muktajivandasji, (1966) 7 Guj LR 645, wherein it was observed that the applicant must explain the delay of each day after the period of limitation prescribed by law for making an application has expired. According to Mr. Trivedi in the three applications filed for condonation of delay, no effort has been made to explain the delay after the first week of Oct., 1974. That is indeed true but at the same time it is necessary to bear in mind that all the three suits were stayed under S. 10 r./w. S. 151 of the Code and, therefore, the plaintiffs did not realise the urgency of filing an application for bringing the legal representatives of the deceased on record immediately after they learnt about his demise. It must also be borne in mind that the legal representatives of deceased Bhagwandas, though served with notice, did not choose to oppose the applications for condonation of delay, setting aside of abatement and for bringing them on record as the legal representatives of the deceased defendant. Even in the present appeals they have not chosen to appear and resist these three appeals filed against the order of the learned trial Judge. It may, therefore, be safely assumed that even at present they have no objection if they are impleladed in the suit as the legal representatives of deceased Bhagwandas. It is only the first respondent who is opposing this application tooth and nail presumably because the allegations in the three suits are mainly directed against him. It must also be remembered that the plaintiffs had filed an application for bringing the legal representatives of the deceased on record in the High Court in First Appeal No. 984 of 1960 and the delay in filing that application was condoned on the ground that the plaintiffs did not have the knowledge about the death of Bhagwandas prior to the first week of Oct. 1974. From this circumstance it can be said without hesitation that there was no desire on the part of the plaintiffs to abandon the cause or give up the litigation pending against the defendants.

12. In Karim Abdulla v. Bai Hoorbai, (1975) 16 Guj LR 835, my learned brother M. P. Thakkar, J., had an occasion to Jay down principles which should govern the Court dealing with an application under Section 5 of the Lim. Act. He observed that the expression 'sufficient cause' employed in S. 5 must be interpreted in a liberal manner so as to advance the cause of substantial justice particularly when no negligence or inaction or want of bona fides is imputable to a party. He then proceeded to lay down the guidelines and while doing so observed that when Courts have observed that every day's delay must be explained, they did not mean to convey that a pedantic unpragmatic approach should be made but the doctrine must be applied in a rational commonsense manner. The learned Judge says that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have a vested right in injustice being done because of a non-deliberate delay. Therefore, if the Court refuses to condone delay, it can result in a meritorious matter being thrown out and justice being denied to a party which never desired to abandon or give up the cause with which it bad approached the Court.

13. D. A. Desai, J., in Asian Steel & Metals (P.) Ltd., Ahmedabad v. Maganlal, (1977) 18 Guj LR 606, while dealing with the expression 'sufficient cause' in Section 5 of the Lim. Act observed that a liberal view must be taken by the Court so as to advance the cause of substantial justice and not to deny justice by adopting a highly technical narrow and constricted approach. He pointed out that in every case where an application for, condonation of delay is made, there is bound to be some element of negligence but the negligence must be of such gross inaction as to give rise to the inference that the party intended to give up the litigation. In other words, the learned Judge observed that if there was no desire on the part of the plaintiffs to abandon the cause or give up the litigation, merely because there was some delay on their part in making an application for condonation of delay for setting aside the abatement, such an application should not be refused on the technical doctrine of the party having failed to explain every day's delay.

14. The position of law as can be culled out from the aforesaid decisions is that A party seeking condonation of delay under Section 5 of the Limitation Act must show 'sufficient cause' for excusing the delay. How ever the Court in dealing with such an application must take a liberal view and should not be over-strict and highly technical so as to sacrifice the cause of substantial justice and thereby deny to the plaintiff the right to have his cause decided on merits. At the same time if there is gross negligence or in action indicative of desire on the part of the plaintiff to abandon the cause or give up the litigation, the Court would be justified in refusing to condone the delay. When the Courts speak about every day's delay being explained, they do not canvass that a hypertechnical, pedantic and unpragmatic view should be adopted in dealing with applications for condonation of delay. Rules of procedure have been engrafted in the Code and elsewhere in law to advance the cause of justice and not to throttle its cause at the threshold. Therefore, if it appears from the facts on record that the delay has not caused any prejudice to the party opposing the application for condonation of delay, in the sense that the said party has not taken any irreversible steps on the basis that the litigation has come to an end because of inaction on the part of the plaintiffs to take steps within the period of limitation for setting aside the abatement, the Court should not take a technical view and refuse to condone the delay on the pedantic approach that every day's delay is not explained. If on the other hand the inaction on the part of the plain tiffs is indicative of their desire to abandon the cause or give up the litigation, the Court would be justified in refusing to condone the delay. In the present appeals the facts clearly show that the suits were lying on the dormant file because they were stayed on account of the First Appeal which was pending in the High Court. The plaintiffs, therefore, did not take immediate steps to apply for setting aside the abatement after they learnt about the demise of defendant Bhagwandas somewhere in the first week of October, 1974. There was no urgency because the suits were not likely to proceed till the disposal of the appeal in the High Court. The appeal came to be disposed of almost twoyears thereafter on 14thOct., 1976. However, when the learned advocate representing the plaintiffs in the suits was informed about the death of defendant Bhagwandas, he made an application for condonation of delay in the three suits on 29th Nov. 1974 and 2nd Dec. 1974. It is true that in the affidavit in support of those applications the date of knowledge of the demise of Bhagwandas was inaccurately stated but that should not be a ground for putting an end to all the three suits wherein substantial claims have been made. To do so would be to deqy to the plaintiffs the right of having their suits decided on merits on the technical ground that they did not make an application for bringing the legal representatives on record and for setting aside the abatement within the prescribed time, particularly when it becomes clear from their conduct in the First Appeal in the High Court that they did not desire to abandon or give up the cause and more so when there is no evidence to show that any prejudice is likely to be caused to the first respondent if the legal representatives of deceased Bhagwandas are brought on record, since those legal representatives have never opposed the applications. I am, therefore, of the opinion that the learned trial Judge who did not have the benefit of the views expressed in the subsequent two decisions of this Court was wrong in dismissing the applications for condonation of delay.

15. In the result these three appeals are allowed and the order passed by the learned trial Judge on 27th April, 1977 holding that the suits had abated and stood terminated in their entirety is set aside. The delay is condoned and the abatement is set aside. The applications for bringing the legal representatives of deceased Bhagwandas are allowed and the appellants are given four weeks time to carry out the necessary amendment in all the three suits. There will be no order as to costs.

16. Appeals allowed.


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