Case Note & Summary
The present appeal arises from a suit filed in 1983 by the original plaintiffs (respondents herein) against the original defendant, Bitesh Hanumantrao Sagar, who was carrying on business as a sole proprietor under the name 'Bitesh Engineering Trading and Commercial Management'. The suit sought possession of the suit premises and mesne profits. During the pendency of the suit, the original defendant died. His legal representatives, namely his wife and daughters (the appellants), were brought on record. Subsequently, the suit was dismissed for non-prosecution on 22nd February 2011. The plaintiffs filed an application for restoration of the suit, which was allowed by the trial court. The defendants challenged this order by way of the present appeal. The main legal issues were whether the suit had abated due to the death of the sole proprietor and whether the dismissal for default was proper. The court held that the suit had not abated as the legal representatives were brought on record, albeit with some delay, and the trial court had discretion to condone the delay. The court also held that the dismissal for default was not justified as the plaintiffs had shown sufficient cause for non-appearance. The appeal was dismissed, and the order of the trial court restoring the suit was upheld.
Headnote
A) Civil Procedure - Abatement of Suit - Order 22 Rule 4, Order 22 Rule 9, Code of Civil Procedure, 1908 - The suit does not abate if the legal representatives of a deceased sole proprietor are brought on record, even if there is a delay, as the court has discretion to condone delay and set aside abatement if sufficient cause is shown. The trial court erred in holding that the suit abated automatically without considering the application for setting aside abatement. (Paras 10-15) B) Civil Procedure - Dismissal for Default - Order 9 Rule 8, Code of Civil Procedure, 1908 - A suit dismissed for non-prosecution can be restored if the plaintiff shows sufficient cause for non-appearance. The trial court's dismissal of the suit for default without considering the merits and without giving an opportunity to the plaintiffs to explain the delay was improper. (Paras 16-20) C) Civil Procedure - Legal Representatives - Order 22 Rule 4, Code of Civil Procedure, 1908 - In a suit against a sole proprietor, the legal representatives of the deceased proprietor are necessary parties and must be brought on record within the limitation period. However, the court has power to condone delay and set aside abatement if sufficient cause is shown. (Paras 10-15)
Issue of Consideration
Whether the suit filed by the plaintiffs for possession and mesne profits was liable to be dismissed for non-prosecution and whether the suit had abated due to the death of the sole proprietor defendant without bringing his legal representatives on record within the prescribed period.
Final Decision
The appeal is dismissed. The order of the trial court restoring the suit is upheld.
Law Points
- Order 22 Rule 4 CPC
- Order 22 Rule 9 CPC
- Order 9 Rule 8 CPC
- Section 151 CPC
- Abatement of suit
- Setting aside dismissal for default
- Legal representatives
- Sole proprietorship
