Pritam Singh vs Gurmukh Singh and others

G.C. Mital, J.—The trial Court refused to set aside the abatement by order dated 3.10.1987. Against the aforesaid order the legal representatives went up in appeal. The learned Additional District Judge noticed decisions of this Court and the Supreme Court wherein abatement was set aside even when there was longer delay, and allowed the appeal and after setting aside the abatement, ordered the impleading of the legal representatives as plaintiffs and remitted the case to the trial Court for proceedings further in accordance with law. This is revision against the aforesaid order of the Additional District Judge.

It is urged that appeal before the district court did not lie and the remedy, if any, of the legal representatives was to approach this Court in revision. Order 43, Rule 1(k) of the Code of Civil Procedure, provides for an appeal against the order refusing to set aside the abatement or dismissal of the suit. The dead man can never file an appeal, nor can file an application for setting aside the abatement. The application can be filed only by the legal representatives if the deceased is the sole plaintiff or the appellant but if there are more than one plaintiffs or appellants, then the application can be filed by the remaining plaintiffs or appellants. The provision under Order 43, Rule 1(k) of the Code is wholesome Whosoever files an application for setting aside the abatement and if that application is dismissed, i.e., the abatement is not set aside, he clearly has a right of appeal.

The learned counsel has brought to my notice AIR 1951 P&H .184 and (1988-1) 93 P.L.R. 54 for the proposition that the legal representatives have no right to file an appeal as they are not parties to the case and Order 43, Rule 1(k) would not come to their rescue, without entering into this controversy, assumming that only revision lay to this Court. I am of the considered view that it is a fit case in which abatement deserves to be set aside and in exercise of my suomotu powers of revision, I adopt the order of the Additional District Judge and set aside the abatement. In both the decided cases, this Court in revisional jurisdiction had set aside the abatement.

Therefore, viewing the case from any angle, the abatement is set aside and the order of the Additional District Judge is confirmed and the case is remitted to the trial Court for bringing on record the legal representatives of the deceased plaintiff and to proceed further with the suit in accordance with law.

With the aforesaid order, the revision stands disposed of.