Suit does not abate if one legal representative of deceased plaintiff is already on record.

The petitioner (Sunil Moolchandani) and his father (Gopichand Moolchandani) filed a suit for specific performance against the respondents.

During the pendency of the suit, Gopichand (Plaintiff No. 1) died on April 20, 2024.

Instead of filing an application for substitution of legal representatives (LRs) under Order 22 Rule 3 or to set aside abatement under Order 22 Rule 9 CPC, the petitioner filed an application under Order 1 Rule 10 read with Order 6 Rule 17 CPC on November 18, 2024, to implead the remaining LR (another son of the deceased).

The Trial Court dismissed the entire suit as abated on January 11, 2025, noting that the application was filed beyond the 90-day and 150-day limitation periods without a Section 5 Limitation Act application.

The petitioner challenged this dismissal via civil revision.

1. Whether a suit abates if one of the legal representatives of a deceased plaintiff is already on record as a co-plaintiff.

2. Whether the Trial Court can treat an application under Order 1 Rule 10 CPC as an application under Order 22 Rule 3 CPC in the interest of justice.

3. Whether a revision under Section 115 CPC is maintainable against an order dismissing a suit as abated.

Section 115 of the Code of Civil Procedure (CPC) regarding the maintainability of revisions against final orders.

Order 22 Rule 3 CPC concerning the substitution of legal heirs and the principle that when at least one heir is already on record, the estate is sufficiently represented, preventing abatement.

High Court Precedent: Roshanlal Tiwari v. Pannalal (2024) 1 MPLJ 297, which supports impleadment via Order 1 Rule 10 CPC when no abatement occurs.

Procedural principle that technicalities should not defeat substantive rights and that courts should favor deciding matters on merits.

The Court reasoned that because the petitioner (Plaintiff No. 2) was the son and Class-I legal heir of the deceased Plaintiff No. 1, the estate of the deceased was already represented on record.

The Court distinguished this from cases where no LRs are on record. Since there was no abatement, the 90-day limitation under Order 22 did not strictly apply to the exclusion of the remaining heirs, who could be brought on record under Order 1 Rule 10 CPC as necessary parties.

The Court criticized the Trial Court for a hyper-technical approach, stating it should have treated the Order 1 Rule 10 application as an Order 22 Rule 3 application if necessary to preserve substantive justice.

Regarding maintainability, the Court held that since the order of abatement disposed of the suit finally but did not constitute a decree or a specifically appealable order under Order 43 Rule 1(k), a revision under Section 115 was the appropriate remedy.

The High Court allowed the revision and set aside the Trial Court’s order dated January 11, 2025; total dismissal of the suit was deemed a jurisdictional error.

The application under Order 1 Rule 10 CPC was allowed, and the Trial Court was directed to correct the cause title and proceed with the trial on merits.