IN THE HIGH COURT OF MADHYA PRADESH

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AT JABALPUR

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BEFORE

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HON'BLE SHRI JUSTICE VIVEK JAIN

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ON THE 3

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rd

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OF FEBRUARY, 2026

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MISC. PETITION No. 429 of 2021

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SMT. CHANDA KACHER AND OTHERS

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Versus

KAMLESH KACHER

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Appearance:

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Shri Arvind Kumar Shrivastava - Advocate for petitioners.

Shri Quazi Fakhruddin - Advocate for respondent.

ORDER

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The present petition has been filed challenging the order dated

08.01.2021 passed by the appellate Court, whereby the appellate Court has

set aside the order dated 26.10.2015 passed by the trial Court, by which the

trial Court had rejected application under Order 22 Rule 4 CPC for

substitution of legal representatives of sole defendant and consequently

dismissed the suit as abated and consigned the file to the record room. In

appeal, the appellate Court vide impugned order dated 08.01.2021, has

allowed the application under Order 22 Rule 4 read with Rule 9 CPC and

permitted substitution of legal representatives of sole defendant.

2. The necessary facts for the purpose of adjudication of the present

petition are that a suit had been filed by the original respondent who was the

original plaintiff against the original defendant. The legal representatives of

original defendant are in this petition before this Court. The original plaintiff

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and original defendant were step-mother and step-son respectively and the

suit was filed in the year 1999, which was for eviction of the original

defendant who was the step-son of the original plaintiff. During the

pendency of this petition, the original plaintiff has also died and is now

represented by her son.

3. The original defendant expired on 22.06.2014 and an application for

substitution of legal representatives was filed on 29.06.2015 which was

almost one year after death of the original defendant and no separate

application under Section 5 of the Limitation Act was filed along with the

said application. Therefore, the trial Court had rejected the said application

on the ground that it is barred by limitation because 150 days after date of

death of the original defendant, application under Section 5 of the Limitation

Act had to be filed which has not been filed. Even otherwise, the application

was not found to have disclosed sufficient reason for the delay caused in

filing of application for substitution and on these grounds, the substitution

was rejected by the trial Court and the suit was dismissed as abated. Against

that order, the original plaintiff approached the appellate Court and the

appellate Court has set aside the order and directed substitution of legal

representatives of original defendant.

4. The learned counsel for the petitioners, who are LRs of original

defendant, has vehemently argued before this Court that no application for

substitution of legal representatives can be filed in a suit after 90 days

because the suit stands abated and, therefore, the application has to be filed

as a separate MJC. It was further argued that the abatement is automatic after

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90 days and even the application for setting aside abatement has to be filed

within further 60 days and thereafter application for condonation of delay

has to be filed. Therefore, it was the duty of the trial Court to have consigned

the file to the Record Room after 90 days or as soon as the factum of death

of deceased defendant came to notice of the trial Court which was after 90

days of death of deceased defendant and should have relegated the plaintiff

to file application for setting aside abatement and substitution as separate

proceedings in MJC.

5. It is further argued that no cogent reasons were assigned for condonation

of delay because though the counsel for the defendants had not discharged

his obligation under Order 22 Rule 10A CPC by intimating the factum of

death of deceased defendant but the deceased defendant and the original

plaintiff were step-son and step-mother and it could not be inferred that one

of the parties did not know the fact of death of other party more so when the

address of both the parties was one and the same and both the parties are

occupying different portions of the same property. It is argued that it was not

the case of unrelated parties and even in the application under Order 22 Rule

4 CPC, nothing has been pleaded by the original plaintiff which inspire

confidence to condone the delay in moving application for substitution.

6 . Per contra, it is vehemently argued by counsel for the

respondent/plaintiff that the application has been rightly allowed by the

appellate Court. It is argued that though separate application under Section 5

of Limitation Act was not filed, but sufficient explanation was given for

delay in the application under Order 22 Rule 4 read with Rule 9 CPC. It was

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argued that though in the application captioned as one under Order 22 Rule 4

read with Rule 9 CPC, though prayer might not have been made to set aside

abatement but once the prayer was made to substitute the legal

representatives, therefore, the prayer to condone the delay and to set aside

abatement was implicit in that very application and the appellate Court has

rightly taken a justice orientated view of the matter and has not taken a strict

technical view of the matter and, therefore, this Court should confirm the

impugned order passed by the appellate Court and the suit which is pending

since the year 1999 should now be brought back to life and allowed to

proceed on its merits.

7. It is further argued that once the suit itself was pending and had not been

dismissed as abated, therefore, the application for setting aside abatement

and for substitution of legal representatives would be filed in that suit itself

and not as a separate MJC.

8. Heard.

9. In the present case, admittedly, the original defendant had died on

22.06.2014 and the application for substitution was filed on 29.06.2015. So

far as the argument of learned counsel for the petitioners that as soon as the

fact of death of deceased defendant came to notice of the Court by filing

application under Order 22 Rule 4 CPC is concerned, then the trial Court

ought to have rejected the suit as abated and registered the application as

separate MJC is concerned, the said argument is utterly misconceived and is

not contemplated anywhere in CPC.

10. Once the suit is still pending and the file has not been disposed of by

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dismissing the suit as abated, then any application for setting aside abatement

and substitution of legal representatives would be filed in that proceeding

only and cannot be filed as a separate proceeding. There is no provision in

the Code of Civil Procedure that such an application has to be filed as a

separate proceeding nor such a course of action is contemplated anywhere in

the Madhya Pradesh Civil Court Rules 1961.

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The classification of records

that are prepared as separate cases are laid down in Rules 292, 293, 294, 295

and 296. Any application under Order 22 Rule 9 CPC is not contemplated to

be registered or maintained as separate file/record under these rules.

11. As per Rule 340, classifications of cases are broadly grouped as:

(i) suits,

(ii) miscellaneous judicial cases,

(iii) execution cases,

(iv) insolvency petitions,

(v) regular appeals,

(vi) miscellaneous appeals,

(vii) miscellaneous cases.

The applications for setting aside abatement cannot be grouped in any

of these class of cases. Miscellaneous Judicial cases are enumerated under

Rule 372, and that has only certain specified class/nature of cases, and that

does include application under Order 22 Rule 9 CPC, i.e. application for

setting aside abatement, as contained in Rule 372 (4). However, separate

order-sheet is not required to be opened for such applications, in view of

Rule 319, that mentions that for which class of cases, separate order-sheets

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are to be opened. For Miscellaneous Judicial cases, separate order sheet shall

be opened only for cases Miscellaneous Judicial cases under items (5), (6),

(8), (9), (10), (11), (17), (18), (22), (24), (34) or (42) of Rule 372.

12. As per note appended to Rule 295, the list of miscellaneous judicial

cases contained in Rule 372 is compiled for purposes of registration and not

of classification. Miscellaneous judicial cases not included in the preceding

rules will form part of the parent record and the papers forming them will not

be collected separately except in the case of those miscellaneous judicial

cases for which a separate order-sheet is prescribed. It is also clarified therein

that the orders governing these cases will be found in Rule 319. Therefore, it

becomes crystal clear that the application for setting aside abatement is not to

be opened as a separate file and as a separate case. It will be dealt with in the

main case itself. Hence, in the present case, the application has rightly been

entertained in the main file of the suit itself and that was the only lawful

course for the trial Court to do, which the trial Court did. Only if the case had

been disposed of as abated before filing of application under Order 22 Rule 4

or 9 CPC, then it could have been registered as different MJC.

13. So far as the contention that though the application was captioned as

one under Order 22 Rule 4 and 9 CPC but no prayer was made to set aside

the abatement is concerned, the said issue has been considered time and

again by the Hon'ble Supreme Court and most recently in the case of Om

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Prakash Gupta alias Lalloowa (Now Deceased) and others vs. Satish Chandra

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(Now Deceased)

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, reported in 2025 SCC OnLine SC 291,

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wherein in

paragraph 23 the Hon'ble Supreme Court has held that when an application

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praying for substitution is filed, then even assuming that it does not have an

express prayer for setting aside the abatement, such prayer should be read as

inherent in the prayer for substitution, in the interest of justice. The Supreme

Court referred to the earlier judgement in the case of Mithailal Dalsangar

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Singh and others vs. Annabai Devram Kini and others,

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reported in (2003) 10

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SCC 691

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.

14. In view of the above, the mere fact that the application was not

captioned as one under Section 5 of the Limitation Act and the prayer in the

application was in terms of Order 22 Rule 4 and not in terms of Order 22

Rule 9 CPC, pales into insignificance and this argument of the learned

counsel for the petitioners, is discarded.

15. So far as the grounds raised by the learned counsel for the petitioners

that no benefit of Order 22 Rule 10A CPC can be taken in the present case

because the parties were step-mother and step-son and resident of the same

property though in different parts of the same property, therefore, it could

not be inferred that the plaintiff did not get knowledge of death of defendant

is concerned, it cannot be denied that the plaintiff must have been aware of

the death of defendant which took place on 22.06.2014 and the benefit of

Order 22 Rule 10A CPC may not be strictly taken by the plaintiff in this

case.

16. However, the appellate Court has duly considered the position in its

order that a Second Appeal No.1062/2023 is pending between the same

parties in which the original defendant is the appellant before this Court and

in that appeal, the legal representatives of the original defendant moved an

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application for substitution only on 27.04.2015 and this application was filed

by the legal representatives of the deceased defendant himself and this Court

allowed the application for substitution and also set aside the abatement on

16.06.2015 in SA No.1062/2003. Shortly thereafter, when the application for

substitution was filed in the pending Second Appeal before this Court, then

the plaintiff who is respondent in the second appeal, filed application for

substitution of same legal representatives in the civil suit on 29.06.2015 and

the appellate Court has duly considered the position that the proceedings of

the civil suit were lying stayed since 24.07.2000 till 15.05.2015 and only

formal dates were being fixed in the suit and it was only when on 15.05.2015

when the order of the High Court dated 21.04.2015 was filed before the trial

Court, then the trial Court proceeded ahead in the suit and directed the

plaintiff to lead evidence.

17. In view of the aforesaid facts that the trial in the suit was stayed and the

trial got started in terms of order dated 21.04.2015 passed by the High Court

in some other case which was filed before the trial Court on 15.05.2015,

therefore, the plaintiff having filed an application on 29.06.2015, cannot be

stated to have filed an application with such delay that it would lead to

dismissal of the suit as abated.

18. In the case of Union of India vs. Ram Charan (Deceased)

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by LRs. [AIR

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1964 SC 215],

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the Supreme Court considered the need to construe delay

liberally in cases of abatement by noting that the limitation of 90 days might

have been laid down in view of time gap between successive dates of

hearing in a civil suit. It was held as under:-

“The provisions of the Code are with a view to advance the cause of justice.

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(VIVEK JAIN)

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JUDGE

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Of course, the Court, in considering whether the appellant has established

sufficient cause for his not continuing the suit in time or for not applying for

the setting aside of the abatement within time, need not be over-strict in

expecting such proof of the suggested cause as it would accept for holding

certain fact established, both because the question does not relate to the

merits of the dispute between the parties and because if the abatement is set

aside, the merits of the dispute can be determined while, if the abatement is

not set aside, the appellant is deprived of his proving his claim on account

of his culpable negligence or lack of vigilance. It is true that it is no duty of

the appellant to make regular enquiries from time to time about the health or

existing of the respondent.”

19. Therefore, this Court does not find any error in the order passed by the

appellate Court in setting aside the order of dismissal of the suit as abated

and allowing the application for substitution of legal representatives of

deceased defendant by setting aside abatement.

20. Consequently, the petition fails and is dismissed

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