HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on: 18.09.2025 Pronounced on: 25.09.2025 Case No.:- OW104 No. 66/2012 IA No. 69/2012 Baldeshwar Dass & Ors …..Petitioner(s) Through: Mr. R.K.S. Thakur, Advocate. Vs Koushalya Devi & Ors .…. Respondent(s) Through: None. Coram: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT 1. The petitioners, through the medium of the present petition, have challenged order dated 24.01.2008 passed by learned Sub Judge (City Judge), Jammu (hereinafter to be referred to as “trial court”) whereby suit of the plaintiffs as against defendants No. 4, 6, 9 and 12 has been dismissed as having abated. Challenge has also been thrown to order dated 22.10.2012 passed by learned Principal District Judge, Jammu (hereinafter to be referred to as “appellate court”) whereby the aforesaid order passed by the learned trial court has been upheld. 2 OW104 No. 66/2012 2. It appears that the petitioners (plaintiffs) had filed a suit before the learned trial court against the respondents (defendants) for the following reliefs: (a) Declaration that land falling under khasra No. 319 min measuring 399 kanals 14 marlas situated in village Narian Khoo, Nagrota, Tehsil and District Jammu is joint proprietary land in possession of the plaintiffs and other co-sharers. (b) Declaration that sale deed dated 06.06.2002 registered on 07.06.2002 executed by defendant No. 1 in favour of defendant No. 5 in respect of land measuring 3 kanals 18 marlas, sale deed dated 17.04.2002 registered on 19.04.2002 executed by defendant No. 1 in favour of defendant No. 6 in respect of land measuring 3 kanals 17 marlas, sale deed dated 04.05.2002 executed by defendant No. 1 in favour of defendant No. 7 in respect of land measuring 3 kanals 10 marlas, sale deed dated 03.05.2002 registered on 14.05.2002 executed by defendant No. 1 in favour of defendant No. 8 in respect of land measuring 3 kanals 15 marlas, sale deed dated 27.04.2002 registered on the same day executed by defendant No. 1 in favour of defendant No. 9 in respect of land measuring 3 kanals 18 marlas, sale deed dated 16.05.2002 registered on the same day executed by defendant No. 2 in favour of defendant No. 10 in respect of land measuring 3 kanals 18 marlas, sale deed dated 17.04.2002 registered on same day executed by defendant No. 2 in favour of defendant No. 11 in respect of land measuring 3 kanals 18 marlas, sale deed dated 07.06.2002 registered on 08.06.2002 executed by defendant No. 2 in favour of defendant No. 10 in respect of land measuring 3 kanals 10 marlas, sale deed dated 18.05.2002 registered on the same day executed by defendant No. 2 in favour of defendant No. 12 in respect of land measuring 3 kanals 16 marlas, sale deed dated 18.10.2002 registered on 19.10.2002 executed by defendant No. 3 in favour of defendant No. 13 in respect of land measuring 3 kanals 18 marlas, sale deed dated 31.10.2002 registered on same day executed by defendant No. 3 in favour of defendant No. 5 in respect of land 3 OW104 No. 66/2012 measuring 3 kanals 14 marlas, sale deed dated 03.05.2002 registered on 04.05.2002 executed by defendant No. 4 in favour of defendant No. 12 in respect of land measuring 3 kanals 16 marlas, sale deed dated 19.04.2002 registered on 22.04.2002 executed by defendant No. 4 in favour of defendant No. 9 in respect of land measuring 3 kanal 10 marlas, sale deed dated 16.05.2002 registered on 17.05.2002 executed by defendant No. 4 in favour of defendant No. 11 in respect of land measuring 3 kanals 10 marlas and sale deed registered on 07.11.2002 executed by defendant No. 4 in favour of defendant No. 11 in respect of land measuring 3 kanals 10 marlas are null and void and inoperative and that defendants No. 5 to 13 have not acquired any right whatsoever in respect of the land mentioned in the said sale deeds. (c) Permanent Prohibitory Injunction restraining the defendants from interfering in the suit land; with a further direction that defendants No. 1 to 4 and other co-sharers be restrained from transferring the suit land or any portion thereof to any third person. 3. It seems that during the pendency of the suit, defendant No. 4 passed away on 27.09.2005. It also appears that the plaintiffs made an application before the learned trial court on 13.04.2007 for bringing on record the legal heirs of the deceased-defendant No. 4. Along with the application, the plaintiffs also filed another application for seeking condonation of delay in filing the application for bringing on record the legal heirs of the deceased-defendant No. 4. 4. The learned trial court, vide impugned order dated 24.01.2008, dismissed the application of the plaintiffs and 4 OW104 No. 66/2012 held that suit as against defendants No. 4, 6, 9 and 12 stands dismissed as abated. While holding so, the learned trial court observed that because deceased-defendant No. 4 had executed sale deeds in respect of portions of the suit land in favour of defendants No. 6, 9 and 12 and the cause of action in respect of other defendants are different and separable, as such, the suit abates only against defendant No. 4 (vendor) and defendants No. 6, 9 and 12 (vendees) whereas, the suit as against the other defendants can proceed further. The aforesaid order came to be challenged in appeal by the plaintiffs before the appellate court. In terms of the impugned order dated 22.10.2012, the learned appellate court upheld the order of the trial court. 5. The petitioners have challenged the impugned orders by contending that it was only on 09.03.2007 that counsel for the defendants had made a statement that defendant No. 4 had expired whereafter plaintiff No. 1, who is an illiterate person, took steps to bring on record the legal heirs of the deceased- defendant No. 4 after ascertaining the particulars of the legal representatives. It has been further contended that since defendants No. 6, 9 and 12, in whose favour deceased- defendant No. 4 had executed sale deeds were representing the estates of defendant No. 4, therefore, the suit did not abate as against the said defendants but this aspect of the matter has 5 OW104 No. 66/2012 not been considered by the learned trial court. It has been contended that the application for bringing on record the legal heirs of the deceased-defendant No. 4 and the application for seeking condonation of delay in making such application is virtually an application for setting aside abatement but the learned trial court and the appellate court have fallen into error by holding that in the absence of application for setting aside abatement, the suit stands abated against defendants No. 4, 6, 9 and 12. It has been further submitted that defendant No. 4 otherwise was set ex parte and he did not contest the suit, therefore, it was not obligatory for the plaintiffs to bring on record his legal heirs. 6. Nobody has been appearing in the case on behalf of the respondents/defendants and they have been set ex parte vide order dated 21.08.2025. 7. I have heard learned counsel for the parties and perused record of the case. 8. As per the trial court record and even as per the admission of the plaintiffs, defendant No. 4 has died on 27.09.2005 whereas, the application for bringing on record legal heirs of the deceased-defendant No. 4 along with application for condonation of delay in making such application was made by the plaintiffs before the trial court on 13.04.2007. As per the 6 OW104 No. 66/2012 provisions contained in Jammu and Kashmir Limitation Act, an application for bringing on record legal heirs of the plaintiff/defendant has to be made within six months from the date of death. It is pertinent to mention here that at the relevant time, Jammu and Kashmir Limitation Act was applicable. Thus, the application for brining on record legal representatives of the deceased-defendant No. 4 was barred by limitation. 9. As per Section XXII Rule 4(3) of the Code of Civil Procedure where within the time limited by law no application is made for bringing on record legal heirs of a defendant, the suit would abate as against the deceased-defendant. Thus, the moment the period of limitation for filing an application for bringing on record legal heirs of a deceased-defendant expires, the suit as against the said defendant automatically abates. Therefore, after the expiry of six months from the date of death of defendant No. 4 i.e., upon expiry of six months from 27.09.2005, the suit of the plaintiffs as against defendant No. 4 abated. Since defendant No. 4 had executed sale deeds in favour of defendants No. 6, 9 and 12, as such, the suit against the said defendants also abated on the said date. 10. The learned trial court while dismissing the application of the plaintiffs has observed that there is no provision contained in 7 OW104 No. 66/2012 Order XXII of the Code of Civil Procedure, which permits condonation of delay in filing the application for bringing on record the legal representatives, as such, the application for condonation of delay is misconceived and because the plaintiffs have not filed application for setting aside the abatement, therefore, the abatement of the suit as against the deceased-defendant No. 4 cannot be set aside. The learned trial court has also observed that because the plaintiffs and the defendants are residents of same village, therefore, it is to be inferred that the plaintiffs were in knowledge of the death of defendant No. 4, as such, their plea that they came to know about the date of death of defendant No. 4 on 09.03.2007 when counsel for the defendants brought the said fact to their notice, cannot be accepted particularly when no such statement finds mention in the minutes of proceedings dated 09.03.2007. 11. The question that arises for determination in this case is as to whether in the absence of a specific application by a plaintiff for setting aside abatement, the application made for bringing on record the legal representatives of the deceased-defendant along with an application for condonation of delay in filing such application, can be treated as an application for setting aside abatement. Another question that falls for determination is as to whether it is the duty of the counsel for a party to suit 8 OW104 No. 66/2012 to inform the Court about the death of his client and if there is an omission on the part of the counsel, what would be its effect. 12. So far as the first question is concerned, the legal position in this regard is settled inasmuch as it has been the consistent view of this Court as well as of the Supreme Court that an application for bringing on record legal representatives of a deceased-defendant along with an application for condonation of delay in making such application can always be treated as an application for setting aside the abatement. This Court in the case of “Maya Ram Vs. Nanak Chand & Ors”, AIR 1993 J&K 56 has held that an application made after expiry of time to bring legal representatives of deceased plaintiff/defendant on record is in substance an application under Order XXII Rule 9 seeking setting aside of abatement and should be treated as such. Similar view has been taken by this court in the case of “Abdul Samad Mir & Ors Vs. Abdullah Mir & Ors”, 2012 SLJ 626. In the said case, it has been specifically held that an application filed for bringing on record legal representatives along with application for condonation of delay, has to be treated as application under Rule 9 of Order XXII of the Code of Civil Procedure for setting aside the abatement. 9 OW104 No. 66/2012 13. More recently, a Coordinate Bench of this Court in the cases of “Hakim Din Vs. Akbar Noor & Ors”, 2024 (5) J&K [HC] and “Dewan Dewakar Rai & Ors Vs. Ajit Singh & Ors”, 2021 (4) JKJ [HC] 189 has held that if an application under Order XXII Rule 4 of the Code of Civil Procedure for bringing on record legal representatives of the deceased-defendant is made after a suit has abated, the same can also be treated as an application for setting aside the abatement because the provisions contained in Order XXII of the Code of Civil Procedure have been held to be procedural in nature and have to be construed liberally to advance substantial justice. 14. Even the Supreme Court of India has taken a similar view. While considering the aforesaid aspect of the matter, in the case of “Mithailal Dalsangar Singh & Ors Vs. Annabai Devram Kini” (2003) 10 SCC 691, the Supreme Court has held that there is a need for justice oriented approach in such matters and prayer to bring on record legal heir(s)/legal representative(s) can also be construed as a prayer for setting aside abatement. The relevant observations of the Supreme Court are reproduced as under: “8. Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision 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 10 OW104 No. 66/2012 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 the abatement. So also a prayer for setting aside abatement as regards 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 the 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 for. 9. The courts have to adopt a justice-oriented approach dictated by the uppermost consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the court. The opinion of the trial Judge allowing a prayer for setting aside abatement and his finding on the question of availability of „sufficient cause‟ within the meaning of sub- rule (2) of Rule 9 of Order 22 and of Section 5 of the Limitation Act, 1963 deserves to be given weight, and once arrived at would not normally be interfered with by superior jurisdiction. 11 OW104 No. 66/2012 10. In the present case, … such an approach adopted by the Division Bench verges on too fine a technicality and results in injustice being done. There was no order in writing passed by the court dismissing the entire suit as having abated. The suit has been treated by the Division Bench to have abated in its entirety by operation of law. For a period of ninety days from the date of death of any party the suit remains in a state of suspended animation. And then it abates. The converse would also logically follow. Once the prayer made by the legal representatives of the deceased plaintiff for setting aside the abatement as regards the deceased plaintiff was allowed, and the legal representatives of the deceased plaintiff came on record, the constitution of the suit was rendered good; it revived and the abatement of the suit would be deemed to have been set aside in its entirety even though there was no specific prayer made and no specific order of the court passed in that behalf.” 15. The aforesaid ratio laid down by the Supreme Court has been followed by the said Court in the recent case of “Om Parkash Gupta alias Lalloowa (now deceased) & Ors Vs. Satish Chandra Gupta alias Lalloowa (now deceased) & Ors” (Civil Appeal No. 13407 of 2024, decided on 11.02.2025.) 16. From the foregoing analysis of legal position, it is clear that an application for brining on record legal representatives of the deceased-defendant even if it is filed after the abatement of the suit, can be treated as an application for setting aside abatement and in appropriate cases, the abatement can be set aside and the legal representatives of the deceased-defendant can be brought on record. It has been the consistent view of 12 OW104 No. 66/2012 the courts that provisions contained in Order XXII should be construed liberally with a view to advance substantial justice. The Supreme Court in “Chinnammal & Ors Vs. P. Arumugham”, 1990 (1) SCC 513 has held that Code of Civil Procedure is a body of procedural law designed to facilitate justice and it should not be treated as an enactment providing for punishments and penalties. The Court further held that the laws of procedure should be so construed as to render justice wherever reasonably possible. 17. In the face of aforesaid legal position, the technical and pedantic approach adopted by the learned trial court in refusing to set aside abatement merely on the ground that the plaintiffs had failed to file an application for setting aside abatement, cannot be sustained in law. The learned trial court has committed a gross illegality by not exercising the jurisdiction vested with it in a proper manner and this illegality has been perpetuated by the learned appellate court by upholding the order of the learned trial court. 18. So far as the second issue is concerned, law casts a duty upon the pleader to communicate to the court about death of a party. Rule XXII Rule 10 (A) of the Code of Civil Procedure is very clear about it. It provides that whenever a pleader appearing for a party to the suit comes to know of the death of 13 OW104 No. 66/2012 that party, he has to inform the Court about it whereafter the Court has to give a notice of such death to the other party and for this limited period, the contract between the pleader and the deceased party is deemed to subsist. 19. The Supreme Court has, in the case of “Gangadhar & Anr Vs. Raj Kumar”, (1984) 1 SCC 121 while considering the importance of Rule 10(A) of Order XXII of the Code of Civil Procedure, which was inserted in the year 1976, made the following observations: “3. … Rule 10-A which has been added in Order XXII of the Code of Civil Procedure by the Amending Act of 1976 provides that when a pleader appearing for a party to the suit comes to know of the death of the party, he shall inform the court about it and the court thereafter shall issue notice to the other party. In the case of an appeal, the word „suit‟ has to be read as „appeal‟. This provision was introduced specifically to mitigate the hardship arising from the fact that the party to an appeal may not come to know about the death of the other party during the pendency of the appeal but when it is awaiting its turn for being heard. The appeal lies dormant for years on end and one cannot expect the other party to be a watch-dog for day-to-day survival of the other party. When the appeal on being notified for hearing is activated, knowledge occasionally dawns that one or the other party has not only died, but the time for substitution has run out and the appeal has abated. In order to see that administration of justice is not thwarted by such technical procedural lapse, this very innovative provision has been introduced, whereby, a duty is cast upon the learned advocate appearing for the party who comes to know about the death of the party to intimate to the court about the death 14 OW104 No. 66/2012 of the party represented by the learned counsel and for this purpose a deeming fiction is introduced that the contract between dead client and lawyer subsists to the limited extent after the death of the client. 20. Relying upon the aforesaid observations, the Supreme Court has, in Om Parkash Gupta’s case (supra), observed as under: 29. Rule 10-A casts a duty upon a pleader appearing for a party to the suit to intimate the court about the death of such party. It further provides that once the court is informed by the pleader of a party that he is no more, the court “shall” notify the opposing party of the death. A straightforward interpretation of this rule would suggest that the court's obligation to issue notice to the other party is indeed mandatory. Nonetheless, this obligation may not arise in all circumstances. One notable exception could be when the information regarding the party's death is conveyed to the court in the presence of the opposing party's pleader or is documented by the court in the order sheet. In such cases, if the pleader of the concerned party (and consequently the party itself) has already been notified, issuing a further notice from the court would not serve any substantial purpose other than being an exercise by way of abundant caution. Therefore, in the aforementioned scenario, the absence of a notice from the court would not imply a failure to comply with Rule 10A, suggesting that it is not “always mandatory”. 21. From the foregoing analysis of legal position, it is clear that a pleader of a party is duty bound to inform the court about the death of party he was representing whereafter a notice has to be issued to the other party, which is mandatory in nature 15 OW104 No. 66/2012 unless the said party was present in court at the time when the information about death of the party is conveyed to the court. Until the counsel for a party discharges his aforesaid duty and in the absence of anything on record to impute knowledge about death of a party, it cannot be inferred that the opposite party had the knowledge about the death. 22. In the present case, the plaintiffs have specifically pleaded that it was only on 09.03.2007 that counsel for the defendants informed them that defendant No. 4 had died. Although the said statement does not find mention in the minutes of proceedings, yet the assertion of the plaintiffs that counsel for the defendants informed them about death of defendant No. 4 on 09.03.2007 and not prior to said date has not been disputed by the defendants nor there is anything on record to the contrary. It is correct that defendant No. 4 lived in the same village in which plaintiffs were residing but that fact by itself does not impute knowledge of death of defendant No. 4 to the plaintiffs. In fact, as already stated, it was the bounden duty of the counsel for defendant No. 4 to inform the Court about the death of defendant No. 4 which, in the present case, he has not done prior to 09.03.2007. Thus, the assertion of the plaintiffs that they came to know about the death of defendant No. 4 only on 09.03.2007 cannot be doubted. 16 OW104 No. 66/2012 23. Once date of knowledge of the death of defendant No. 4 is taken as 09.03.2007, the delay by the plaintiffs in filing an application for bringing on record the legal heirs of the deceased-defendant No. 4 appears to be justified and it can, by no stretch of reasoning, be stated that there has been any negligence or inaction on their part. The observations of the learned trial court, as upheld by the learned appellate court in this regard, are without any basis. 24. For what has been discussed hereinbefore, it is clear that the impugned order passed by the learned trial court, as upheld by the learned appellate court, is not sustainable in law and it has resulted in manifest failure of justice. The same, therefore, is not sustainable in law. 25. Accordingly, the petition is allowed and the impugned order passed by the learned trial court, as upheld by the learned appellate court, is set aside. Consequently, the application of the plaintiffs for bringing on record the legal heirs of the deceased-defendant No. 4 is allowed and the abatement against defendant No. 4 is set aside, as a corrollory thereto abatement of suit as against defendants No. 6, 9 and 12 is also set aside. The plaintiffs shall file an amended memo of parties before the trial court wherefter the newly substituted legal heirs of the deceased-defendant No. 4 shall be 17 OW104 No. 66/2012 summoned and the case shall be proceeded further in accordance with law. 26. Disposed of accordingly. Record of the learned trial court be sent back. (SANJAY DHAR) JUDGE JAMMU 25.09.2025 Naresh/Secy. Whether order is speaking: Yes Whether order is reportable: Yes ………. Naresh Kumar 2025.09.25 17:13 I attest to the accuracy and integrity of this document