Need For Solicitous Perspective In Adjudicating Applications For Substitution Of Legal Heirs Under Order XXII Rule 4 CPC, Setting Aside Abatement And Condonation Of Delay
In a recent judgment in “OM PRAKASH GUPTA ALIAS LALLOOWA (NOW DECEASED) & ORS. VERSUS SATISH CHANDRA (NOW DECEASED) & Connected Matter” Hon’ble Apex Court ruled that filing a substitution application under Order XXII Rule 4 CPC eliminates the need for a separate application to set aside the abatement. Hon’ble Court in it’s judgment addressed observations made by it in various related cases.
Let’s briefly discuss Section XXII Rule 4 and Abatement of a Suit before going into the Hon’ble Court’s comprehensive remark.
Table of Contents
Section XXII Rule 4 of Code of Civil Procedure, 1908-
Procedure in case of death of one of several defendants or of sole defendant—
(1) Where one of two or more defendants die and the right to sue does not survive against the surviving defendant or defendants alone or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendants to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.
[(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.
(5) Where— (a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and (b) the plaintiff applies after the expiry of the period specified therefore in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application with the period specified in the said Act, the Court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved.]
Abatement Of Suit– Abatement is the premature ending of a suit before final adjudication. When a suit is abated it may be abated temporarily or permanently. Grounds for abatement-
- Death of a party,
- On premature commencement of action
- Withdrawal of suit
Facts:
The Respondent (Satish Chandra) passed away during the pendency of second Appeal (filed by Om Prakash). The Legal Heirs of the respondent had moved an application for their substitution. The Appellant subsequently passed away on 8th December 2001. However, no application was moved by the legal heirs of the Appellant. Ultimately, the second appeal was ordered to be abated by the Hon’ble High Court. Then in 2017, Legal heirs of Respondent initiated proceedings seeking execution of order passed in the First Appeal filed by Satish Chandra.
After receiving notice, the legal heirs of the Appellant preferred an application for recall/restoration of the aforesaid order recording abatement of second appeal. An application for substitution along with condonation of delay was also moved on same day.
The restoration application was allowed by the Hon’ble High Court. However, the aforementioned order was recalled upon application moved by the Respondent. The Court didn’t find sufficient cause in condonation of delay application in filing the substitution of the legal heirs, thus the application for substitution of legal heirs was dismissed with liberty to appellant to move application for setting aside order of abatement of suit. The present appeal arises out of said order.
Issue Involved:
Whether High Court was justified in dismissing the application for condonation of delay in filing the application for substitution and could the second appeal be regarded as abated.
Court’s Observation:
The principles to guide courts while considering applications for setting aside abatement and for condonation of delay in filing the former application have been established by this court in Perumon Bhagvathy Devaswom v. Bhargavi Amma wherein it was held that, “The words ‘sufficient cause’ in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant. In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement.
The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case.
Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.”
It can be construed that if the following three conditions exist, the courts will usually condone the delay, and set aside the abatement (even though the period of delay is considerable and a valuable right might have accrued to the opposite party—LRs of the deceased—on account of the abatement):
- The respondent had died during the period when the appeal had been pending without any hearing dates being fixed;
- Neither the counsel for the deceased respondent nor the legal representatives of the deceased respondent had reported the death of the respondent to the court and the court has not given notice of such death to the appellant;
- The appellant avers that he was unaware of the death of the respondent and there is no material to doubt or contradict his claim.
In the present case, the appellants had applied for substitution and an application for condonation of delay in filing the former application was filed, without there being an application for setting aside the abatement.
The suit/appeal automatically abates when an application to substitute the legal representative(s) of the deceased party is not filed within the prescribed limitation period of 90 days from the date of death, as stipulated by Article 120 of the Limitation Act, 1963. It could well be so that death of a defendant/respondent is not made known to the plaintiff/appellant within 90 days, being the period of limitation. Does it mean that the suit or appeal will not abate? The answer in view of the scheme of Order XXII cannot be in the negative.
In the event the plaintiff/appellant derives knowledge of death immediately after the suit/appeal has abated, the remedy available is to file an application seeking setting aside of the abatement, the limitation wherefor is stipulated in Article 121 and which allows a period of 60 days. Therefore, between the 91st and the 150th day after the death, one has to file an application for setting aside the abatement. On the 151st day, this remedy becomes time-barred; consequently, any application seeking to set aside the abatement must then be accompanied by a request contained in an application for condonation of delay under Section 5 of the Limitation Act in filing the application for setting aside the abatement. Thus, the total timeframe for filing an application for substitution and for setting aside abatement, as outlined in Articles 120 and 121 of the Limitation Act, is 150 (90 + 60) days.
The question of condonation of delay, through an application under Section 5 of the Limitation Act, arises only after this period and not on the 91st day when the suit/appeal abates.
The correct sequence is as follows:
- File an application for substitution within 90 days of the death of party.
- If the substitution application is not filed, submit an application for setting aside the abatement within 60 days.
- If neither application is filed within the prescribed time, file the requisite applications for substitution and setting aside the abatement with an accompanying application for condonation of delay in filing the latter application, i.e., the application for setting aside the abatement.
Once the court is satisfied that sufficient cause prevented the plaintiff/appellant from filing an application for setting aside the abatement within the prescribed limitation period and orders accordingly, comes the question of setting the abatement. That happens as a matter of course and following the order for substitution of the deceased defendant/respondent, the suit/appeal regains its earlier position and would proceed for a trial/hearing on merits. Be that as it may.
The question in present case is that, whether the heirs of Om Prakash were required to file a separate application for substitution, given that an application for substitution (Civil Misc. Substitution Application No. 211 of 1997) had already been filed by the heirs of Satish Chandra.
A careful review of Order XXII Rule 4 of the Code of Civil Procedure reveals that it does not explicitly specify which party in a civil suit is required to file an application for substitution.
In Union of India v. Ram Charan, this court observed that “There seems to be no legal requirement that on the death of a defendant, an application for substitution in all cases has to be made by the plaintiff only and that, any application, made by the heir(s)/legal representative(s) of the deceased defendant seeking an order to allow him/them step into the shoes of the deceased defendant and to contest the suit, cannot be considered. Once an application has been made by either party and the court has been informed about the death of a party and who the heir(s)/legal representative(s) he has left behind, the only thing that remains for the court is to pass an order substituting the heir(s)/legal representative(s).
Thus, the application moved by the heirs of Satish Chandra (Civil Misc. Substitution Application No. 211 of 1997), whereby the court was informed by them of his death and the heirs that he had left behind, constituted a valid and legally permissible request for substitution, warranting due consideration.
Since the law does not explicitly require the plaintiff/appellant to file a substitution application upon receiving notice of death, the requirement of a formal application from the plaintiff only will serve no tangible purpose.
A justice-oriented approach has to be applied while interpreting the provisions of the CPC. In Chinnammal v. P. Arumugham, Hon’ble Court held that: “17. It is well to remember that the 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 laws of procedure should be so construed as to render justice wherever reasonably possible. It is in our opinion, not unreasonable to demand restitution from a person who has purchased the property in court auction being aware of the pending appeal against the decree.”
The High Court having been apprised of the death of Satish Chandra, and substitution having been prayed by the heirs of the deceased, it ought to have proceeded to consider such application and pass an order bringing the heirs of the deceased respondent on record. However, the High Court omitted to pass the order, perhaps, due to inadvertence whereby pendency of the application for substitution filed by the heirs of Satish Chandra escaped its notice.
When an application praying for substitution had been moved, then, even assuming that it does not have an explicit prayer for setting aside the abatement, such prayer could be read as inherent in the prayer for substitution in the interest of justice.
In Mithailal Dalsangar Singh v. Annabai Devram Kini. Apex Court, held that application for substitution of heir(s)/legal representative(s) can also be construed as a prayer for setting aside the abatement of suit. 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. Too technical or pedantic an approach in such cases is not called for. 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.
Conclusion:
As per Order XXII Rule 10-A of CPC, when a counsel appearing for a party gets acquainted with the fact of death of that party, he shall inform the court, and thus the court shall notify such death to the other party.
A straightforward interpretation of this rule suggests that the court’s obligation to issue notice to the other party is mandatory. Nonetheless, as already discussed in case laws referred hereinabove, the said obligation may not arise in all circumstances. In the present case, although no application praying for setting aside of abatement was ever preferred by the appellants before the High Court, however as held in Mithailal (supra), prayer for setting aside of abatement can be considered as part of prayer for substitution of legal heirs.
Accordingly, the abatement of the second appeal was set aside by the Apex Court for ends of justice.
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