VISHWANATH KHANNA AND SONS Vs. BANK OF BARODA

JUDGEMENT

(1.) THE requirement for filing this application for substitution of Karta of plaintiff/HUF arose on 7th January, 2007 when Shri Vishwanath Khanna, Karta of plaintiff/HUF had died. However, this application has been filed on 18th May, 2007 as an objection was raised by the counsel opposite that since the substitution of Karta of the plaintiff/HUF had not taken within the stipulated period of 90 days, therefore this suit abates. It is stated in this application that upon the death of Karta of HUF, the senior member automatically becomes the Karta of HUF and so, there is no question of any abatement. The question herein is not as to what happens upon the death of Karta of HUF. Whether substitution of Karta of HUF upon the death of the Karta is required or not is no longer res integra as Apex Court in ,,UOI vs Sree Ram Bohra & Ors.', AIR 1965 SC 1531 had refused to intervene where the suit stood abated on account of non -substitution of the Karta of the HUF.

(2.) IT becomes quite evident from the perusal of this application that the applicant's counsel was under a misconception about the procedure to be adopted upon the death of Karta of HUF. What is to be considered is whether this lapse of applicant's counsel deserves to be condoned or not. The question of setting aside abatement has been considered by the Apex Court in ,,Ramdas Shivram Sattur vs. Rameshchandra Popatlal Shah & Ors.', AIR 2007 SC 3018, while declaring in no uncertain terms that in such cases too technical or pedantic approach is not called for. What has been said by the Apex Court is as under: - "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."

(3.) THE bona fide belief of the Applicant, which is based upon mistaken advice of counsel that substitution of the Karta in the legal proceedings is not required, is a sufficient reason, in the opinion of this Court, to set aside the abatement and to permit the Applicant to pursue the suit as Karta of the HUF as the instant application is accompanied by Affidavit of the Applicant as well as the other legal heirs of the original Karta of the Plaintiff (HUF).