2025 INSC 183 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 13407 OF 2024

OM PRAKASH GUPTA ALIAS LALLOOWA

(NOW DECEASED) & ORS. … APPELLANTS

VERSUS

SATISH CHANDRA (NOW DECEASED) …RESPONDENT

WITH

CIVIL APPEAL NO. 13408 OF 2024

OM PRAKASH GUPTA ALIAS LALLOOWA

(NOW DECEASED) & ORS. … APPELLANTS

VERSUS

SMT. ROOPRANI (NOW DECEASED) …RESPONDENT

J U D G M E N T

DIPANKAR DATTA, J.

BRIEF RESUME OF FACTS

1. FACTS OF CIVIL APPEAL NO. 13407 OF 2024:

a. Satish Chandra instituted a suit

1

against Om Prakash Gupta

2

seeking

specific performance of an agreement

3

. The suit was dismissed by the

1

Civil Suit No. 264/1972

2

Om Prakash

3

agreement to sell dated 8

th

February,1970

2

trial court

4

vide judgment and order dated 7

th

October, 1974. In first

appeal

5

, Satish Chandra succeeded and the suit was decreed vide

judgment and decree dated 31

st

March, 1977. Aggrieved, Om Prakash

preferred a second appeal

6

before the High Court of Judicature at

Allahabad

7

. The High Court granted stay of operation of the decree vide

order dated 11

th

May, 1977.

b. Satish Chandra passed away on 2

nd

December 1996 during the pendency

of the second appeal. On 2

nd

January, 1997, his heirs moved an

application for substitution

8

. The High Court was informed of the death

of Satish Chandra by the heirs and prayer was made for their

substitution. Paragraph no. 1 of the application for substitution

contained details as follows:

“That in the above noted second appeal, the sole respondent

Satish Chandra son of Sri Ram died on 2.12.1996 leaving

behind the following heirs and legal representatives: -

1/1 Anil Kumar

1/2 Vimal Kumar

1/3 Manoj Kumar”

Prayer in the said application is as follows:

“It is prayed that the Hon’ble Court may be pleased to delete

the name of the respondent no. 1 Sri Satish Chandra from array

of the parties and on his place the following:

1/1 Anil Kumar

1/2 Vimal Kumar

1/3 Manoj Kumar

All sons of Late Sri Satish Chandra

R/o Gandhi Tola, Nawabganj, Bareilly

Be substituted as his heirs and legal representatives”

4

the court of the Civil Judge, Bareilly

5

Civil Appeal No.11 of 1975

6

Second Appeal No. 885 of 1977

7

High Court, hereafter

8

Civil Miscellaneous Substitution Application No. 211 of 1997

3

c. Om Prakash died on 8

th

December 2001.

d. From the sequence of orders passed in the second appeal between 17

th

March, 2004 and 8

th

December, 2006, it is seen that multiple

opportunities were given to counsel for Om Prakash to file an application

for substitution. However, pendency of the application for substitution

filed by the heirs of Satish Chandra escaped the notice of the High Court.

e. Ultimately, the second appeal was ordered to have abated in the whole

vide order dated 2

nd

January 2007 on the ground that no application for

substitution was filed by Om Prakash or his heirs to bring on record the

heirs/legal representatives of Satish Chandra.

f. In the year 2017, the heirs of Satish Chandra initiated proceedings for

execution of the decree

9

.

g. Put on notice, the heirs of Om Prakash preferred an application for

recall/restoration

10

seeking recall of the aforesaid order recording

abatement of the second appeal. On the same day, they also filed an

application for substitution

11

along with an application for condonation

of delay

12

.

h. The restoration application was allowed by the High Court and the

second appeal restored to its original file and number vide order dated

25th May, 2018.

9

E.A. No. 6 of 2017

10

Civil Miscellaneous Restoration Application No. 2 of 2018

11

Civil Miscellaneous Substitution Application No. 5 of 2018

12

Civil Miscellaneous Delay Condonation Application No. 4 of 2018

4

i. Seeking recall of the said order, heirs of Satish Chandra preferred an

application for recall

13

along with an application for condonation of

delay

14

. These applications were allowed vide order dated 11

th

January

2019, with the result that the order restoring the second appeal to its

original file upon setting aside of abatement stood recalled. Liberty was,

however, reserved for the heirs of Om Prakash to file an application for

setting aside abatement.

j. While hearing the pending applications, referred to in paragraph g.

(supra), the High Court did not find sufficient reasons for condoning the

delay in filing the application for substitution. Resultantly, such

application filed by the heirs of Om Prakash along with the application

for substitution was dismissed vide impugned order dated 27

th

February

2019.

k. Taking exception to such order of the High Court, the heirs of Om

Prakash have filed Civil Appeal No. 13407 of 2024.

2. FACTS OF CIVIL APPEAL NO. 13408 OF 2024:

a. Smt. Rooprani

15

, Satish Chandra’s wife, instituted a suit

16

for specific

performance of an agreement

17

against Om Prakash and his minor sons

(represented through their mother). The suit was dismissed vide order

dated 7

th

October, 1974 by the Trial Court

18

. In an appeal

19

preferred by

13

Recall Application No. 7 of 2018

14

I.A. No. 8 of 2018

15

Rooprani

16

Suit No. 94 of 1973

17

agreement to Sell dated 7

th

June, 1970

18

Court of Civil Judge, Bareilly

19

Appeal No. 12 of 1975

5

Rooprani, the suit was decreed vide judgment and decree dated 31

st

March, 1977. Om Prakash carried the first appellate decree in a second

appeal

20

. The High Court granted stay of operation of the impugned

decree vide order dated 11

th

May, 1977.

b. After the death of Rooprani on 18

th

May, 1991, an application

21

was filed

on or about November/December, 1992 by deceased Rooprani’s son, Anil

Kumar, praying that the High Court may take note of an alteration made

by Om Prakash and his heirs in the decretal property. In the affidavit

accompanying such application, it was stated that the deponent (Anil

Kumar) is one of the sons of deceased Rooprani (plaintiff). The same is

reproduced below:

“That the deponent is one of the sons of the deceased

respondent Smt. Roop Rani and conversant with the facts

deposed.”

c. As noted earlier, Om Prakash passed away on 8

th

December, 2001.

d. The second appeal of Om Prakash was dismissed for non-prosecution

22

as the counsel for the remaining appellants (the heirs of Om Prakash)

submitted that his clients were not responding.

e. After almost 11 (eleven) years, on 15

th

September, 2017, the legal

representatives of Rooprani filed for execution of the decree

23

.

f. This is when the heirs of Om Prakash, on 5

th

April, 2018, filed an

application

24

seeking recall of the order dismissing the second appeal for

20

Second Appeal No. 884 of 1977

21

C.M.A. No. 5306 of 1992

22

vide order dated 3

rd

November, 2006

23

E.A. No. 7 of 2017

24

Recall/ Restoration Application No. 2 of 2018 in Second Appeal No. 884 of 1977

6

want of prosecution. They filed an application

25

, 40 (forty) days later,

praying for their substitution as heirs of deceased Om Prakash, along

with an application seeking condonation of delay

26

.

g. Finding that sufficient cause had been shown, the High Court allowed

the recall application and restored the second appeal to its original file

and number vide order dated 25

th

May, 2018.

h. Seeking recall of the aforesaid order, the heirs of Rooprani filed a recall

application

27

which was dismissed by the High Court vide order dated

11

th

January, 2019. The High Court opined that restoration of the second

appeal, in itself, did not amount to setting aside of the abatement and

unless abatement is set aside, the second appeal is non-est in the eyes

of law and no right will accrue to either side.

i. Thereafter, the impugned orders were passed by the High Court on 27

th

February, 2019. By the first order, the application by heirs of Om Prakash

for condonation of delay in filing the substitution application

28

was

dismissed. The second order, having regard to the first order, dismissed

their application for substitution

29

. For the reasons assigned in the first

order, the High Court did not find sufficient reasons to condone the delay.

j. Taking exception to the above, the heirs of Om Prakash have filed Civil

Appeal No. 13408 of 2024.

PROCEEDINGS BEFORE THIS COURT

25

Civil Miscellaneous Substitution Application No. 5 of 2018

26

Civil Miscellaneous Application No. 4 of 2018

27

Recall Application No. 7 of 2018

28

C.M. Delay Condonation Application No.4 of 2018

29

C.M. Substitution Application No.5 of 2018

7

3. A coordinate bench of this Court, on 12

th

July, 2019, granted permission

to file the special leave petitions and issued notice on such petitions as

well as the accompanying applications for substitution and the

connected applications. Pursuant to service of notice, the heirs of Satish

Chandra and Rooprani entered appearance. Mr. Thomas Joseph, learned

senior counsel and Mr. Shekar Devessa, learned senior counsel

represented the heirs of Om Prakash . Heirs of Rooprani were

represented by Mr. Raghenth Basant, learned senior counsel . While

granting leave and reserving judgment on these civil appeals, we had

made an order allowing the applications for substitution and the

connected applications, filed in the present proceedings, subject to just

exceptions.

CONTENTIONS OF THE PARTIES

4. Learned senior counsel/counsel appearing for the parties have

meticulously taken us through the facts of both these appeals which,

though not very complicated, are a bit extensive considering that

proceedings commenced in 1972-1973.

5. Learned senior counsel/counsel for the appellants have argued that the

High Court fell in error on both occasions by not granting the prayers of

the appellants and having the two second appeals heard on merits.

According to them, procedural requirements have been allowed to steal

a march over substantive justice without duly appreciating the materials

on record.

8

6. Per contra, Mr. Basant appearing for the respondents has assiduously

contended that there is no infirmity, far less manifest infirmity, in the

impugned orders of the High Court and no interference under Article 136

of the Constitution is warranted. He highlighted how Om Prakash was

negligent in pursuing the second appeals before the High Court.

According to him, it well within the knowledge of Om Prakash that

Rooprani and then Satish Chandra passed away and who their heirs

were. Lack of due diligence by Om Prakash being writ large, he prayed

that the longstanding dispute between the parties be laid to rest by

dismissing these appeals and leaving it open to the respondents to

pursue the execution applications in accordance with law, should the

need arise.

ISSUES

7. The issue arising for decision in C.A. No.13407 of 2024 is, whether the

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 having abated.

8. In C.A. No. 13407 of 2024, whether the High Court was justified in

passing the impugned orders dismissing the applications filed by the

appellants seeking substitution and condonation of delay is the issue.

ANALYSIS AND REASONS

9. The principles to guide courts while considering applications for setting

aside abatement and application for condonation of delay in filing the

9

former application are laid down by this Court in Perumon Bhagvathy

Devaswom v. Bhargavi Amma

30

. An instructive passage from such

decision reads as follows:

“13. The principles applicable in considering applications for setting aside

abatement may thus be summarised as follows:

(i) The words ‘sufficient cause for not making the application within the

period of limitation’ should be understood and applied in a reasonable,

pragmatic, practical and liberal manner, depending upon the facts and

circumstances of the case, and the type of case. 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.

(ii) 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 t he ground of

abatement.

(iii) The decisive factor in condonation of delay, is not the length of delay,

but sufficiency of a satisfactory explanation.

(iv) 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. For

example, courts view delays in making applications in a pending appeal

more leniently than delays in the institution of an appeal. The courts view

applications relating to lawyer’s lapses more leniently than applications

relating to litigant’s lapses. The classic example is the difference in approach

of courts to applications for condonation of delay in filing an appeal and

applications for condonation of delay in refiling the appeal after rectification

of defects.

(v) Want of ‘diligence’ or ‘inaction’ can be attributed to an appellant only

when something required to be done by him, is not done. When nothing is

required to be done, courts do not expect the appellant to be diligent. 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.”

(emphasis supplied in original)

The aforesaid passage is followed by other instructive passages too on

special factors which have a bearing on what constitutes “sufficient

30

(2008) 8 SCC 321

10

cause”, with reference to delay in applications for setting aside

abatement and bringing the legal representatives on record. To the

extent relevant for decisions on these two appeals, the same are

extracted hereunder:

“15. The first is whether the appeal is pending in a court where regular and

periodical dates of hearing are fixed. There is a significant difference

between an appeal pending in a subordinate court and an appeal pending

in a High Court. In lower courts, dates of hearing are periodically fixed and

a party or his counsel is expected to appear on those dates and keep track

of the case. The process is known as ‘adjournment of hearing’. ...

16. In contrast, when an appeal is pending in a High Court, dates of hearing

are not fixed periodically. Once the appeal is admitted, it virtually goes into

storage and is listed before the Court only when it is ripe for hearing or

when some application seeking an interim direction is filed. It is common

for appeals pending in High Courts not to be listed at all for several years.

(In some courts where there is a huge pendency, the non -hearing period

may be as much as ten years or even more.) When the appea l is admitted

by the High Court, the counsel inform the parties that they will get in touch

as and when the case is listed for hearing. There is nothing the appellant is

required to do during the period between admission of the appeal and listing

of the appeal for arguments (except filing paper books or depositing the

charges for preparation of paper books wherever necessary). The High

Courts are overloaded with appeals and the litigant is in no way responsible

for non-listing for several years. There is no need for the appellant to keep

track whether the respondent is dead or alive by periodical enquiries during

the long period between admission and listing for hearing. When an appeal

is so kept pending in suspended animation for a large number of years in

the High Court without any date being fixed for hearing, there is no

likelihood of the appellant becoming aware of the death of the respondent,

unless both lived in the immediate vicinity or were related or the court

issues a notice to him informing the death of the respondent.

17. The second circumstance is whether the counsel for the deceased

respondent or the legal representative of the deceased respondent notified

the court about the death and whether the court gave notice of such death

to the appellant. Rule 10-A of Order 22 casts a duty on the counsel for the

respondent to inform the court about the death of such respondent

whenever he comes to know about it. When the death is reported and

recorded in the order-sheet/proceedings and the appellant is notified, the

appellant has knowledge of the death and there is a duty on the part of the

appellant to take steps to bring the legal representative of the deceased on

record, in place of the deceased. The need for diligence commences from

the date of such knowledge. If the appellant pleads ignorance even after

the court notifies him about the death of the respondent that may be an

indication of negligence or want of diligence.

18. The third circumstance is whether there is any material to contradict

the claim of the appellant, if he categorically states that he was unaware of

11

the death of the respondent. In the absence of any material, the court would

accept his claim that he was not aware of the death.

19. Thus it can safely be concluded 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):

(i) The respondent had died during the period when the appeal had been

pending without any hearing dates being fixed;

(ii) 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;

(iii) The appellant avers that he was unaware of the death of the respondent

and there is no material to doubt or contradict his claim.

(emphasis supplied)

10. Having the benefit of the aforesaid pertinent guiding principles, we also

consider it prudent to dwell on another matter of some importance which

quite frequently this Court is called upon to consider. It is the appropriate

sequence in which remedies available to have an order for setting aside

abatement of a suit should be pursued. This discussion is necessitated

in view of the facts in C.A. No.13408 of 2024 revealing that 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.

11. Rule 1 of Order XXII, CPC provides that when a party to a suit passes

away, the suit will not abate if the right to sue survives. In instances

where the right to sue does survive, the procedure for bringing on record

the legal representative(s) of the plaintiff/appellant and the

defendant/respondent are provided in Rules 3 and 4, respectively, of

Order XXII. The suit/appeal automatically abates when an application to

substitute the legal representative(s) of the deceased party is not filed

12

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 91

st

and the 150

th

day after the death, one has to file an

application for setting aside the abatement. On the 151

st

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 time-frame 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 91

st

day when

the suit/appeal abates. From our limited experience on the bench of this

Court, we have found it somewhat of a frequent occurrence that after

abatement of the suit and after the 150

th

day of death, an application is

13

filed for condonation of delay in filing the application for substitution but

not an application seeking condonation of delay in filing the application

for setting aside the abatement. The proper sequence to be followed,

therefore, is an application for substitution within 90 days of death and

if not filed, to file an application for setting aside the abatement within

60 days and if that too is not filed, to file the requisite applications for

substitution and setting aside the abatement with an accompanyin g

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

applying for setting aside the abatement within the period of limitation

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.

12. We proceed with C.A. No.13407 of 2024 first.

13. Having regard to the facts noticed above, this appeal would require us

to decide whether the heirs of Om Prakash were required to file a

separate application for substitution when, admittedly, an application for

substitution (Civil Misc. Substitution Application No. 211 of 1997) had

previously been filed by the heirs of Satish Chandra. If the answer is in

the negative, the impugned orders and also the order dated 2

nd

January

2007 (vide which the second appeal was dismissed as abated) will have

14

to be set aside, since dismissal of a second appeal as abated despite

pendency of a valid substitution application would be bad in law.

14. Order XXII of the Code of Civil Procedure

31

is titled DEATH, MARRIAGE AND

INSOLVENCY OF PARTIES. Rule 4 thereof lays down the procedure in case of

death of one of several defendants or of sole defendant. It is clear on

perusal of such rule that it does not expressly provide who between the

parties to a civil suit is to present an application for substitution.

15. In Union of India v. Ram Charan

32

, this Court held:

“10. It is not necessary to consider whether the High Court applied its earlier

Full Bench decision correctly or not when we are to decide the main question

urged in this appeal and that being the first contention. Rules 3 and 4 of

Order 22 CPC lay down respectively the procedure to be followed in case of

death of one of several plaintiffs when the right to sue does not survive to

the surviving plaintiffs alone or that of the sole plaintiff when the right to

sue survives or of the death of one several defendants or of sole defendant

in similar circumstances. The procedure requires an application for the

making of the legal representatives of the deceased plaintiff or defendant a

party to the suit. It does not say who is to present the application. Ordinarily

it would be the plaintiff as by the abatement of the suit the defendant stand

to gain. However, an application is necessary to be made for the purpose.

If no such application is made within the time allowed by law, the suit

abates so far as the deceased plaintiff is concerned or as against the

deceased defendant. The effect of such an abatement on the suit of the

surviving plaintiffs or the suit against the surviving defendants depends on

other considerations as held by this Court in State of Punjab v. Nathu Ram

[AIR 1962 SCR 89] and Jhandha Singh v. Gurmukh Singh [CA No. 344 of

1956 decided on April 10, 1962]. Anyway, that question does not arise in

this case as the sole respondent had died.”

(emphasis supplied)

16. The law, laid down in Ram Charan (supra), is clear. 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

31

CPC

32

AIR 1964 SC 215

15

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). Such being the case, we have no doubt in holding that

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,

amounted to a n application for substitution which was legally

permissible and valid and deserved consideration.

17. According to Mr. Basant, the application filed by the heirs of Satish

Chandra was an application intimating the death of Satish Chandra

under Order XXII Rule 10-A, CPC and it was not an application under

Rule 4 thereof; thus, there being no valid and proper application for

substitution, the appeal was rightly held to have abated.

18. We find no force in the argument advanced by Mr. Basant. The

application filed by the heirs of Satish Chandra was registered as a

substitution application and the prayer was also for deletion of the name

of Satish Chandra and substitution of his three sons in his place. In view

thereof and having regard to the law laid down in Ram Charan (supra),

we hold that an application having been filed by the heirs of Satish

16

Chandra, the heirs of Om Prakash were not legally obliged to apply

separately for substitution.

19. In our opinion, the law not having expressly mandated that an

application for substitution has to be filed by the plaintiff/appellant upon

receiving intimation of death, requiring a formal application from the

plaintiff only will serve no tangible purpose. A justice-oriented approach

has to be followed in interpreting the provisions of the CPC is the well

settled law. Reference may usefully be made to the decision in

Chinnammal v. P. Arumugham

33

, where it was held:

“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.”

(emphasis supplied)

20. The High Court having been duly informed 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.

This, the High Court omitted to order, perhaps, due to inadvertence

whereby pendency of the application for substitution filed by the heirs

of Satish Chandra escaped its notice.

21. Therefore, the order dated 2

nd

January 2007 vide which the second

appeal was dismissed as having abated cannot sustain and will have to

33

(1990) 1 SCC 513

17

be set aside. The said order, though not under challenge before this

Court, there is no bar for this Court to erase defective orders by setting

them aside, even in the absence of any challenge thereto. In A. Subash

Babu v. State of A.P.

34

, this Court discussed its powers to make any

order to cure a manifest illegality and to avoid travesty of justice even

in the absence of any challenge to such order, and proceeded to express

as follows:

“58. There may be several reasons due to which the State might not have

challenged that part of the judgment of the learned Single Judge quashing

the complaint filed by Respondent 2 under Section 498-A of the Penal Code.

So also because of several reasons such as want of funds, distance, non-

availability of legal advice, etc. the original complainant might not have

approached this Court to challenge that part of the judgment of the learned

Single Judge which is quite contrary to the law declared by this Cou rt.

However, this Court while entertaining an appeal by grant of special leave

has the power to mould relief in favour of the respondents notwithstanding

the fact that no appeal is filed by any of the respondents challenging that

part of the order which is against them. To notice an obvious error of law

committed by the High Court and thereafter not to do anything in the matter

would be travesty of justice.

59. This Court while disposing of an appeal arising out of grant of special

leave can make any order which justice demands and someone who has

obtained an illegal order would not be justified in contending before this

Court that in the absence of any appeal against an illegal order passed by

the High Court the relief should not be appropriately moulded by the Court

or that the finding recorded should not be upset by this Court.

x x x

66. Further, the powers under Article 136 can be exercised by the Supreme

Court, in favour of a party even suo motu when the Court is satisfied that

compelling grounds for its exercise exist. Where there is manifest injustice,

a duty is enjoined upon this Court to exercise its suo motu power by setting

right the illegality in the judgment of the High Court as it is well settled that

illegality should not be allowed to be perpetuated and failure by this Court

to interfere with the same would amount to allow illegality to be

perpetuated.

67. When an apparent irregularity is found by this Court in the order passed

by the High Court, the Supreme Court cannot ignore substantive rights of

a litigant while dealing with the cause pending before it. There is no reason

why the relief cannot be and should not be appropriately moulded while

disposing of an appeal arising by grant of special leave under Article 136 of

the Constitution.”

34

(2011) 7 SCC 616

18

(emphasis supplied)

22. There is another equally important aspect, which merits our attention.

The second appeal was restored by the High Court vide order dated 25

th

May, 2018. This order, restoring the second appeal, was recalled vide

order dated 11

th

January 2019. The reason given was that, in the

absence of an application praying for setting aside the abatement, the

second appeal could not have been ordered to be restored.

23. We find it difficult to agree with such reasoning. When an application

praying for substitution had been made, 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. We draw inspiration for such a conclusion, having

read the decision in Mithailal Dalsangar Singh v. Annabai Devram

Kini

35

. This Court reiterated the need for a justice-oriented approach in

such matters. Inter alia, it was held that prayer to bring on record

heir(s)/legal representative(s) can also be construed as a prayer for

setting aside the abatement. The relevant passage reads 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

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

35

(2003) 10 SCC 691

19

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.

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.”

(emphasis supplied)

24. Hence, the impugned orders as well as the order dismissing the second

appeal as abated, under challenge in the first of the two appeals, is bad

in law; the same deserve to be set aside.

25. Turning to the second of the two appeals, the facts are a little distinct.

26. The order of the High Court dated 27

th

February, 2019 records as

follows:

“... this application was served on counsel for appellants on 12.11.1992,

therefore, it cannot be said that appellants were not aware of death of sole

20

plaintiff-respondent and this fact also came to their notice that aforesaid

application was filed in this court. Appellant 1 was also alive on that date,

as admittedly he died in 2001, but no substitution application was filed,

therefore, appeal stood abated in 1992 itself. When no attempt was made

by appellant 1 himself for substitution and setting aside the abatement, now

appellants 2, 3 and 3 (sic, 4) cannot be allowed to take advantage

subsequently. More so, mother of appellants 2, 3 and 4 who represented

appellants in filing appeal, was also aware of pendency of the case and it is

not the case of appellants that she never told them about pendency of the

case.”

27. In this context, it is fruitful to refer to Order XXII Rule 10-A, CPC. The

same is reproduced below for convenience:

“Wherever a pleader appearing for a party to the suit comes to know of the

death of that party, he shall inform the Court about it, and the Court shall

there upon give notice of such death to the other party, and, for this

purpose, the contract between the pleader and the deceased party shall be

deemed to subsist.”

28. Rule 10-A was not originally contained in CPC, but was inserted in the

CPC in the year 1976 for a noble purpose which has been acknowledged

by this Court in multiple decisions. The first of such decisions, perhaps,

is Gangadhar v. Raj Kumar

36

where this Court held:

“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 of the party represented by the

learned counsel and for this purpose a deeming fiction is introduced that

36

(1984) 1 SCC 121

21

the contract between dead client and lawyer subsists to the limited extent

after the death of the client.

(emphasis supplied)

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”.

30. Had the circumstance outlined above applied to the present appeal, we

would have likely concluded that Rule 10 -A has been substantially

complied with. However, the facts in this instant case are not particularly

clear-cut. As previously noted, in the affidavit submitted alongside an

application by Anil Kumar which primarily was not intended to inform

the court of Rooprani's death, it was stated that he is “one of the sons

22

of deceased Rooprani”. The inclusion of such pertinent information within

an inconspicuous section of an application meant for a different purpose

without the date of death does not, in our considered view, constitute

sufficient compliance with Rule 10-A either by the pleader of the

deceased or amount to due notice to Om Prakash by the court (without

such death being recorded in any order passed subsequently in the

presence of counsel for Om Prakash). To rule otherwise would undermine

the intention of Rule 10-A, which mandates the clear communication of

information relating to death of a party which, obviously, would mean

not only the factum of death being conveyed but also the date of death

since limitation to apply under Article 120 of the Limitation Act, 1963 for

substitution begins to run from the date of death. It is implicit that this

information must be conveyed in a straightforward and unambiguous

manner to enable the plaintiff or the appellant, as the case may be, to

take steps and apply for substitution. No advantage should be allowed

to be derived if such death is, by clever drafting, sought to be disclosed

in an obscure corner of an application seeking to bring to the notice of

the court an alleged subsequent development resulting in violation of a

court’s order.

31. Having held that the manner of conveying information of the death of

Rooprani was not wholly in accordance with Rule 10 -A, information

through the application of Anil Kumar cannot operate adversely against

Om Prakash. Had Om Prakash been noticed by the High Court in due

compliance with Rule 10 -A, yet, did not file an application for

23

substitution, he would be estopped from pleading ignorance and we

would have been inclined to hold otherwise. This not being the case, the

abatement of the second appeal ought to be set aside.

32. Although no application praying for setting aside of abatement was ever

made by the appellants before the High Court, but as held in Mithailal

(supra), prayer for setting aside of abatement can be read in a prayer

for substitution. Accordingly, the abatement of the second appeal can

and ought to be set aside for ends of justice.

CONCLUSION

33. For the foregoing reasons, the appeals merit success.

34. While allowing Civil Appeal No. 13407 of 2024, t he application for

substitution

37

filed by the heirs of Satish Chandra is ordered to succeed.

We set aside the order dismissing the second appeal

38

as abated. The

said appeal is restored to its original file and number. Cause-title of the

said appeal shall be amended to record the death of Satish Chandra and

his heirs - Anil Kumar, Vimal Kumar and Manoj Kumar - shall be brought

on record as substituted respondents.

35. Insofar as Civil Appeal No. 13408 of 2024 is concerned, the impugned

orders stand set aside. The abatement of the second appeal is also set

aside. Resultantly, the prayer for substitution stands granted. Cause-

title of the said appeal shall be amended to record the death of Rooprani

and her heirs – Anil Kumar, Vimal Kumar and Manoj Kumar - shall be

37

Civil Miscellaneous Substitution Application No. 211 of 1997

38

Second Appeal No. 885 of 1977

24

brought on record as substituted respondents in the second appeal.

Consequently, Civil Appeal No. 13408 of 2024 is allowed.

36. Having regard to the long lapse of time ever since the second appeals

were presented before the High Court, that the original parties are now

dead and that the suits were for specific performance of contracts for

sale, we request the roster bench of the High Court to consider the

second appeals on priority and decide the same, subject to its

convenience, preferably within 6 (six) months from date.

37. There shall be no order for costs.

………..…………………J.

(DIPANKAR DATTA)

……………. …………..………………J.

(PRASHANT KUMAR MISHRA)

NEW DELHI ;

11

th

FEBRUARY, 2025.