Sunday, 27 November 2016

When court should not allow application for setting aside of abatement of suit?

 It is no doubt true that a code of procedure “is
designed to facilitate justice and further its ends and it is
not a penal enactment for punishment and penalty and
not a thing designed to trip people up”. Procedural laws
are no doubt devised and enacted for the purposes of
advancing justice. Procedural laws, however, are also
laws and are enacted to be obeyed and
implemented. The laws of procedure by themselves
do not create any impediment or obstruction in the
matter of doing justice to the parties. On the other
hand, the main purpose and object of enacting
procedural laws is to see that justice is done to the
parties. In the absence of procedural laws regulating
procedure as to dealing with any dispute between
the parties, the cause of justice suffers and justice
will be in a state of confusion and quandary.
Difficulties arise when parties are at default in
complying with the laws of procedure. As procedure
is aptly described to be the hand-maid of justice, the
court may in appropriate cases ignore or excuse a
 mere irregularity in the observance of the procedural
law in the larger interest of justice. It is, however,
always to be borne in mind that procedural laws are
as valid as any other law and are enacted to be
observed and have not been enacted merely to be
brushed aside by the Court. Justice means justice to
the parties in any particular case and justice
according to law. If procedural laws are properly

observed, as they should be observed, no problem
arises for the court for considering whether any lapse in
the observance of the procedural law needs to be
excused or overlooked. As I have already observed
depending on the facts and circumstances of a
particular case in the larger interests of administration of
justice the Court may and the Court in fact does,
excuse or overlook a mere irregularity or a trivial breach
in the observance of any procedural law for doing real
and substantial justice to the parties and the Court
passes proper orders which will serve the interests of
justice best.
13. Excuse of lapses in compliance with the laws
of procedure, as a matter of course, with the avowed
object of doing substantial justice to the parties may
in many cases lead to miscarriage of justice.
14. Civil Procedure Code requires that in the event of
death of a particular party, heirs and legal
representatives of the deceased have to be brought on
record within a particular period, provided the cause of
action survives. If the legal representatives are not
brought on record within the stipulated period,
certain consequences follow and the action abates
either wholly or partially depending on the facts and
circumstances of a particular case. The Code further
provides that an application may be made for setting
aside the abatement within a stipulated period. It is now
well settled that an abatement can be set aside at
any time even beyond the period prescribed for
making an application for setting aside the
 abatement, if sufficient cause is shown explaining
 the delay in the making of the application. If,
irrespective of the provisions of the Code and the
merits of the case, abatements are to be set aside as
a matter of course merely on the ground that

abatement is only a consequence of noncompliance
of law of procedure and substantial
justice is denied to the parties, the result may really
amount to a denial of justice and in an indefinite
prolongation of a litigation.
(Emphasis supplied)
12. I believe this powerfully articulated passage to be squarely
applicable to this case. I cannot in law turn a blind eye to the law
relating to abatement. What is it that is expected of the Applicants?
At a minimum, I believe the law requires the Applicants to explain
the delay. It is not just any explanation that will do. The explanation
must be one that is cogent, persuasive and tenable. As we have
seen, the statements in the Affidavit in Support of the Chamber
Summons provide no sort of explanation at all, apart from stating in
the most general terms that the Applicants were ‘unaware’ of the
proceedings in this Court. That they were aware of the proceedings
between the same parties in other courts is accepted. The so-called
explanation seems to me to be most unlikely in the normal course of
conduct; it postulates that the Petitioner kept the Applicants
abreast of the litigations in other courts but for some reason
completely shut them out of all knowledge of the present
proceedings. Why and how that might have been is left to our
speculation. On so diaphanous a thread am I asked to allow this
application. In short, what the Applicants say is that it matters not a
whit what the law says; it matters perhaps even less that their
affidavit contains no explanation as required by law; I must, for the
mere asking, allow their application. I cannot.

13. Would an order putting the Applicants to terms suffice?
After all, in several cases, our courts, including the Supreme Court,
have condoned delayed and set aside abatement by putting parties
to terms. I do not believe there is any rigid formula in such cases. It
also cannot be that in every single case, irrespective of conduct or
the want of any explanation, a party can simply agree to pay costs
and thus evade the consequences of his own negligence or
indolence, or both. Costs are imposed to compensate the other side
for the trouble and expense they have suffered. I do not believe that
anything in our judicial system contemplates, even remotely, a wellheeled
party being able to literally buy his or her way out of a
situation like this. This is, after all, a revocation petition. The
Respondent has obtained legal representation in the Testamentary
Petition, one that was evidently contested and was tried as a suit.
There is, to my mind, no amount that can ‘suitably compensate’ the
Respondent if everything is now sought to be set at nought again.
At the cost of repetition, I must note that the Respondent has been
more than fair to the Court and to the Petitioner’s family: it was the
Respondent’s advocates who pointed out to this Court in June 2014
that the revocation petition needed amendment. The applicants did
nothing. The Respondent pointed this out again in August 2014.
Yet they remained silent. In their Affidavit in Support of the
Chamber Summons they say they knew in December 2014 that they
needed to apply. Even then they did not act. In February 2015, it
was listed before me after notice. The Applicants were even then
represented and accepted that they needed to make this application.
They did not. This application was only filed after my order dated
13th February 2015 (and therefore seeks its recall). In these

circumstances, I do not think any question arises of allowing this
application even on an order of costs.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
CHAMBER SUMMONS NO. 50 OF 2015
IN
TESTAMENTARY SUIT NO. 17 OF 2011
IN
TESTAMENTARY PETITION NO. 402 OF 2004
Smt. Hema Achyut Shah & Ors
V
Princess Ujawala Raje 
CORAM: G.S. PATEL, J
DATED: 12th June 2015
Citation:2016(6) ALLMR403

1. The Chamber Summons seeks to set aside the order of 13th
February 2014 by which it was held that the Miscellaneous Petition
abated on the death of the original revocation Petitioner. There is
also a prayer for condonation of delay of 16 months and 29 days in
filing this Chamber Summons and for impleadment of the heirs of
the original deceased Petitioner.

2. The Affidavit in Support makes out no ground whatsoever
for any such relief. There is no explanation for the delay. The
original revocation Petitioner died on 28th May 2013. As the
Affidavit in Support clearly demonstrates there were and are a large
number of proceedings in various courts between the original
revocation Petitioner, the Respondent and other members of their
respective families.
3. In paragraph 4 of the of the Affidavit in Reply, the
Respondent has set out in detail a tabulation of the various dates
when the Miscellaneous Petition was listed. Of particular interest
are the dates at Serial Nos. 3, 4 and 5 of this tabulation. On 10th
June 2014, the matter was called before R.D. Dhanuka, J. The
revocation Petitioner was not present or represented. The Court
was informed by the Advocate on behalf of the Respondent that the
Petitioner had passed away. It was on account of the absence of
representation for the Petitioner that the matter was adjourned for a
week. It was then listed on two further dates in June but did not
reach. On 11th August 2014, the matter was listed. It reached. The
revocation Petitioner was represented. The Court was again
informed of the passing away of the revocation Petitioner. Learned
Advocate for the present Applicants sought time to take
instructions and it was on that basis that the matter was adjourned
further.
4. The matter was then mentioned before me on 1st December
2014. I listed it for directions on 10th December 2014. It did not
reach on that date. It was then mentioned again on 11th February
2015 after notice and was listed on 13th February 2015. On that day,

the Petitioner was represented. On that day, it was not disputed that
the revocation Petitioner had passed away on 28th May 2013. No
application was even then presented for impleadment of the present
Applicants. I, therefore, passed an order that the Miscellaneous
Petition had abated and disposed of it in those terms. It is only
thereafter, later that day, that the present application was filed.
5. It is to be noted that the original Petitioner and the present
Applicants have all throughout been represented by the same
Advocate.
6. The Affidavit in Support of the Chamber Sumons, far from
assisting the the Applicants, actually damages their cause. In
paragraph 3, the Applicants accept that they were bound to inform
the Respondent and the Court of the death of the original Petitioner
within 90 days. This was not done. The dates that I have noted
above shows that this could have been done well in time.
7. In paragraph 4, the Applicants claimed that they were
unaware of the present proceedings since these were being handled
by the original Petitioner alone, although they knew of all other
proceedings in Vadodara and Ahmedabad. Strangely in paragraph 4
it is said:
“It is only upon the above Miscellaneous Petition being
listed on the board of this Hon’ble Court in the 2nd or
3rd week of December 2014 and upon receipt of the
phone call from the Advocate of the deceased at
Mumbai, the Petitioners came to know about the
pendency of the present proceedings and thereupon

took prompt steps to get them impleaded in the
proceedings.”
8. This clearly indicates that at least in December 2014, the
Applicants and their Advocates were aware that an application was
required to be made for impleadment. As I have noted no such
application was made even when the matter was listed on 13th
February 2015.
9. In a given case, where an Affidavit in Support makes out a
case that the applicant had not the wherewithal or was on account
of other circumstances constrained in some way from moving an
application for setting aside an abatement and for bringing the legal
heirs on record, or even if it was pleaded that this was due to no
fault of the applicant but perhaps due to some oversight on the part
of the advocate representing him or her, a court might have shown
some indulgence. There is no such case made out here. The
Applicants are well-heeled, as was the deceased Petitioner, and are
deeply enmeshed in litigations against the Respondent. No case is
made out of incapacity or helplessness, or of any want of diligence
on the part of the Applicants’ advocate, one who has represented
them throughout. To allow an application such as the present one,
merely for the asking, and in the absence of any cogent or valid
reason, is impermissible in law. We might as well take the law
relating to abatement off the statute books. For parties such as
these, imposing costs provides us no answer. Were this application
to be allowed, it would mean that any party can, at his or heir
leisure, without being asked to make out sufficient cause, demand
and receive an order setting aside abatement.

10. The Supreme Court has in several cases set aside abatement
and condoned delay where it was established that the party was
unaware of the proceedings in which the application is made.1
 That
is not the case here. Although there is a generalized pleading, as I
have noted, the Applicants admit to knowing since December 2014
of the need to bring this application. Indeed, their knowledge was
much earlier, of about August 2014, when they were represented in
this court, and this aspect was mentioned to the Court. There is
also no explanation at all for what steps, if any, the Applicants took
between 28th May 2013, when the Petitioner died, till August or
December 2014 or why it was only after the matter was dismissed as
abated on 13th February 2014 that this application was filed.
11. In Bhagwan Swaroop & Ors. v Mool Chand & Ors.,
2
 reversed
the High Court order refusing to set aside the abatement and
condone delay. Amarendranath Sen, J. partly dissented from the
view taken by D.A. Desai, J; and, while concurring in the reversal of
the High Court order, entered certain observations that are to my
mind material and squarely applicable to this case. Before setting
out those portions, I must note that in Bhagwan Swaroop, the
application was in a partition suit, and was not seriously opposed by
the 1st respondent to that case, who was also interested in a
disposal on merits, but by the 2nd respondent who had taken up
cudgels against both the Special Leave petitioners and the 1st
Respondent, and sought to take every technical advantage. It was in
this factual scenario that Bhagwan Swaroop was decided. The two
1 Ganeshprasad Badrinarayan Lahoti (D) by LRs. v Sanjeevprasad
Jamnaprasad Chourasiya & Anr., (2004) 7 SCC 482; K. Rudrappa v
Shivappa, (2004) 12 SCC 253
2
(1983) 2 SCC 132

learned Judges of the Supreme Court however took slightly
different views on the appropriate approach. Desai, J. emphasized
that procedural provisions are meant to advance justice, not to
impede it, and, given that the real opposition came from the 2nd
respondent, held that sufficient cause was made out.
Amarendranath Sen, J., however said:
12. It is no doubt true that a code of procedure “is
designed to facilitate justice and further its ends and it is
not a penal enactment for punishment and penalty and
not a thing designed to trip people up”. Procedural laws
are no doubt devised and enacted for the purposes of
advancing justice. Procedural laws, however, are also
laws and are enacted to be obeyed and
implemented. The laws of procedure by themselves
do not create any impediment or obstruction in the
matter of doing justice to the parties. On the other
hand, the main purpose and object of enacting
procedural laws is to see that justice is done to the
parties. In the absence of procedural laws regulating
procedure as to dealing with any dispute between
the parties, the cause of justice suffers and justice
will be in a state of confusion and quandary.
Difficulties arise when parties are at default in
complying with the laws of procedure. As procedure
is aptly described to be the hand-maid of justice, the
court may in appropriate cases ignore or excuse a
 mere irregularity in the observance of the procedural
law in the larger interest of justice. It is, however,
always to be borne in mind that procedural laws are
as valid as any other law and are enacted to be
observed and have not been enacted merely to be
brushed aside by the Court. Justice means justice to
the parties in any particular case and justice
according to law. If procedural laws are properly

observed, as they should be observed, no problem
arises for the court for considering whether any lapse in
the observance of the procedural law needs to be
excused or overlooked. As I have already observed
depending on the facts and circumstances of a
particular case in the larger interests of administration of
justice the Court may and the Court in fact does,
excuse or overlook a mere irregularity or a trivial breach
in the observance of any procedural law for doing real
and substantial justice to the parties and the Court
passes proper orders which will serve the interests of
justice best.
13. Excuse of lapses in compliance with the laws
of procedure, as a matter of course, with the avowed
object of doing substantial justice to the parties may
in many cases lead to miscarriage of justice.
14. Civil Procedure Code requires that in the event of
death of a particular party, heirs and legal
representatives of the deceased have to be brought on
record within a particular period, provided the cause of
action survives. If the legal representatives are not
brought on record within the stipulated period,
certain consequences follow and the action abates
either wholly or partially depending on the facts and
circumstances of a particular case. The Code further
provides that an application may be made for setting
aside the abatement within a stipulated period. It is now
well settled that an abatement can be set aside at
any time even beyond the period prescribed for
making an application for setting aside the
 abatement, if sufficient cause is shown explaining
 the delay in the making of the application. If,
irrespective of the provisions of the Code and the
merits of the case, abatements are to be set aside as
a matter of course merely on the ground that

abatement is only a consequence of noncompliance
of law of procedure and substantial
justice is denied to the parties, the result may really
amount to a denial of justice and in an indefinite
prolongation of a litigation.
(Emphasis supplied)
12. I believe this powerfully articulated passage to be squarely
applicable to this case. I cannot in law turn a blind eye to the law
relating to abatement. What is it that is expected of the Applicants?
At a minimum, I believe the law requires the Applicants to explain
the delay. It is not just any explanation that will do. The explanation
must be one that is cogent, persuasive and tenable. As we have
seen, the statements in the Affidavit in Support of the Chamber
Summons provide no sort of explanation at all, apart from stating in
the most general terms that the Applicants were ‘unaware’ of the
proceedings in this Court. That they were aware of the proceedings
between the same parties in other courts is accepted. The so-called
explanation seems to me to be most unlikely in the normal course of
conduct; it postulates that the Petitioner kept the Applicants
abreast of the litigations in other courts but for some reason
completely shut them out of all knowledge of the present
proceedings. Why and how that might have been is left to our
speculation. On so diaphanous a thread am I asked to allow this
application. In short, what the Applicants say is that it matters not a
whit what the law says; it matters perhaps even less that their
affidavit contains no explanation as required by law; I must, for the
mere asking, allow their application. I cannot.

13. Would an order putting the Applicants to terms suffice?
After all, in several cases, our courts, including the Supreme Court,
have condoned delayed and set aside abatement by putting parties
to terms. I do not believe there is any rigid formula in such cases. It
also cannot be that in every single case, irrespective of conduct or
the want of any explanation, a party can simply agree to pay costs
and thus evade the consequences of his own negligence or
indolence, or both. Costs are imposed to compensate the other side
for the trouble and expense they have suffered. I do not believe that
anything in our judicial system contemplates, even remotely, a wellheeled
party being able to literally buy his or her way out of a
situation like this. This is, after all, a revocation petition. The
Respondent has obtained legal representation in the Testamentary
Petition, one that was evidently contested and was tried as a suit.
There is, to my mind, no amount that can ‘suitably compensate’ the
Respondent if everything is now sought to be set at nought again.
At the cost of repetition, I must note that the Respondent has been
more than fair to the Court and to the Petitioner’s family: it was the
Respondent’s advocates who pointed out to this Court in June 2014
that the revocation petition needed amendment. The applicants did
nothing. The Respondent pointed this out again in August 2014.
Yet they remained silent. In their Affidavit in Support of the
Chamber Summons they say they knew in December 2014 that they
needed to apply. Even then they did not act. In February 2015, it
was listed before me after notice. The Applicants were even then
represented and accepted that they needed to make this application.
They did not. This application was only filed after my order dated
13th February 2015 (and therefore seeks its recall). In these

circumstances, I do not think any question arises of allowing this
application even on an order of costs.
14. I find no merit in this Chamber Summons. It is dismissed.
(G. S. PATEL, J.)

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