As per case facts, the applicants sought to set aside the abatement of proceedings against deceased Respondent No. 1 and bring his legal heirs on record, citing the original petitioner's ...
No Acts & Articles mentioned in this case
O.M.P. 1413/2014 Page 1 of 20
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : 10.04.2026
+ O.M.P. 1413/2014, I.A. 8288/2018 (For modifications of orders
23.02.2015) & I.A. 11517/2018 (For Delay 44 days in filing the
Reply by the petitioner to I.A. No. 8288/2018)
V K NAYAR .....Petitioner
Through: Mr. Mrityunjay Kumar,
Advocate for P-1(A) & P-1(C).
versus
G P NAYAR & ANR .....Respondents
Through: Mr. M.C. Dhingra, Senior
Advocate along with Mr.
Gaurav Dhingra and Mr.
Shashank Singh, Advocates for
R-1(B).
CORAM:
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR
% JUDGEMENT (ORAL)
I.A. 17435/2022 (U/O XXII Rule 4 & 9)
1. The present Application has been preferred by the Legal Heirs
of the deceased Petitioner under Order XXII Rules 4 and 9, read with
Section 151 of the Code of Civil Procedure, 1908
1
and Section 5 of
the Limitation Act, 1963
2
, seeking setting aside of the abatement of
the proceedings against Respondent No. 1 and for bringing on record
the legal heirs of the deceased Respondent No. 1. A consequential
prayer has also been made for taking on record the amended Memo of
Parties.
1
CPC
2
Limitation Act
O.M.P. 1413/2014 Page 2 of 20
2. Before proceeding further, it is apposite to briefly set out the
factual matrix relevant for the purposes of the present adjudication,
which is as follows:
(a) The disputes between the parties were adjudicated through
arbitration, which was initiated at the behest of the original
Petitioner, Late Shri V.K. Nayar, and culminated in the filing of
a petition under Section 34 of the Arbitration and Conciliation
Act, 1996, being O.M.P. No. 1413/2014, by him challenging
the Arbitral Award dated 18.07.2014.
(b) During the pendency of the said petition, Respondent No. 1,
Late Shri G.P. Nayar, expired on 19.03.2021.
(c) It is not in dispute that no application for bringing on record the
Legal Representatives
3
of the deceased Respondent No. 1 was
filed within the prescribed period of limitation, as a result,
whereof the proceedings, insofar as against Respondent No. 1
are concerned, stood abated. Further, no application was filed
by the original Petitioner for setting aside the abatement within
the statutorily prescribed period of 60 days, which is from the
date of abatement.
(d) Subsequently, the original Petitioner, Shri V.K. Nayar, passed
away on 30.06.2022. Thereafter, his Legal Heirs filed an
Application on 18.08.2022, to bring themselves on record,
being I.A. No. 15603/2022, which came to be allowed vide
Order dated 17.03.2023 passed by this Court.
(e) However, the present Application, being I.A. No. 17435/2022,
came to be filed on 21.09.2022 by the Legal Heirs of the
3
LRs
O.M.P. 1413/2014 Page 3 of 20
deceased Petitioner under Order XXII Rules 4 and 9 read with
Section 151 of the CPC and Section 5 of the Limitation Act,
inter alia, seeking the setting aside of the abatement of the
proceedings against Respondent No. 1 and for bringing on
record the Legal Heirs/Representatives of the deceased
Respondent No. 1.
(f) I.A. No. 17435/2022 was filed along with I.A. No. 17436/2022,
the latter being an application under Section 5 of the Limitation
Act read with Section 151 of the CPC, seeking condonation of a
delay of 54 days in filing I.A. No. 17435/2022.
(g) I.A. No. 17436/2022 was allowed by this Court vide Order dated
23.12.2025.
(h) In I.A. No. 17435/2022, which is under adjudication presently,
the Applicants have attributed the delay in filing the substitution
application and in seeking to set aside the abatement qua
Respondent No. 1 to the prolonged illness of the original
Petitioner. It is averred that the original Petitioner was suffering
from a serious medical condition, viz, Stage IV brain cancer,
and was, during the relevant period, not in a position to
effectively instruct counsel or take necessary steps for
prosecuting the matter.
(i) The Application is opposed by the proposed LRs of the
deceased Respondent No. 1, who have filed a reply opposing
the grant of relief. It is contended that the delay in seeking
substitution is inordinate and remains unexplained, both during
the lifetime of the original Petitioner and thereafter. It is further
alleged that the plea of medical incapacity is incorrect and is
O.M.P. 1413/2014 Page 4 of 20
belied by the conduct of the original Petitioner during the
relevant period.
(j) The proposed LRs of the deceased Respondent No. 1 have also
contended that the original Petitioner had knowledge of the
death of Respondent No. 1 and, despite such knowledge, failed
to take steps within the period prescribed by law, resulting in
abatement of the proceedings. It is their case that no sufficient
cause has been made out for setting aside the abatement of the
proceedings against the deceased Respondent No. 1.
3. In the aforesaid backdrop, the present Application for setting
aside the abatement and for bringing on record the Legal Heirs/
Representatives of the deceased Respondent No. 1 necessitates
adjudication by this Court.
SUBMISSIONS ON BEHALF OF THE PARTIES :
4. Learned Counsel appearing on behalf of the Applicants/
Petitioner Nos. 1(A) and 1(C) submits that, although the present
Application has been filed after a considerable delay, the same
deserves to be allowed in the peculiar facts and circumstances of the
case. It is submitted that the delay is neither deliberate nor intentional,
but occasioned due to circumstances beyond the control of the
deceased Petitioner.
5. It is contended that the deceased Petitioner was suffering from a
grave and terminal medical condition, which severely impaired his
physical and cognitive abilities and rendered him incapable of
effectively instructing counsel or pursuing the present proceedings
within the prescribed period of limitation.
6. In support of the aforesaid submission, learned Counsel has
O.M.P. 1413/2014 Page 5 of 20
drawn the attention of this Court to the detailed medical history placed
on record along with the Application, delineating the progressive
deterioration in the health condition of the deceased Petitioner,
including diagnosis of a high-grade malignant brain tumour, multiple
surgical interventions, radiotherapy, and subsequent complications,
which persisted till his demise on 30.06.2022.
7. The said medical record, as tabulated in the Application and
supported by contemporaneous medical documents, reflects
continuous and severe medical incapacity. The relevant portion of the
Application delineating the tabular format of the medical history of
the deceased Petitioner is reproduced herein below:
“5. That this Application is being filed under Order XXII Rule
9(2) and Rule 4(5)(b) of the Code of Civil Procedure, 1908 read
with Section 5 of the Limitation Act, 1963. That there is sufficient
cause for not filing the Application for substitution of Legal Heirs
of the Respondent No. 1. The delay has been caused on account of
the poor health and precarious medical condition of the Petitioner,
who ultimately expired on 30.06.2022. In the month of August
2020, the Petitioner complained of severe headache, loss of left eye
vision and disorientation with imbalance. Subsequently, various
tests were done and it came out that the Petitioner was suffering
from Stage IV Brain Cancer. The Petitioner undertook External
Beam Radiotherapy to fight with cancer. However, the Petitioner’s
Brain Cancer kept on getting worse and he could not survive the
brain cancer. The Petitioner underwent brain surgery in the month
of September 2020, which included craniectomy, lobectomy and
excision of tumor. The Petitioner underwent the following tests and
scans which are indicative of the progression and extent of the
Brain Cancer:
Date Doctor/
Hospital
Type of
Test/
Diagnostic
Centre
Reports
Prescriptions/Comments
18.08.
2020
Dr.
Satish
Jain
MRI
Dr. Gulati
Imaging
Institute,
Hauz Khas
Enclave,
Suggestive of mitotic etiology
(presence of dividing/
proliferating cells) with
intralesional vascularity, high
grade glioma (a tumor that
occurs in the brain and spinal
O.M.P. 1413/2014 Page 6 of 20
New Delhi cord), metastases (spread of a
tumor or cancer to distant
parts of the body from its
original site).
21.08.
2020
Dr.
(Prof.)
V.K. Jain
-
Max
Healthca
re
Complaint of severe
headache.
Episode of difficulty in
returning way back to home,
helped by neighbours.
25.08.
2020
Dr. Rohit
Nayyar
MRI
Max
Healthcare,
Saket, New
Delhi
Centrally necrotic/cystic
lesion (damage or abnormal
change in the tissue) with
peripheral heterogeneous
enhancement and FDG
(fluorodeoxyglucose) uptake
in the right parietooccipital
lobe, measuring ~5.5 × 3.7
cm.
Non FDG avid, ~centimetre
sized left level IV cervical
lymph node.
31.08.
2020
Dr. Rana
Patir
MRI
Fortis
Memorial
Research
Institute,
Gurugram
Suggestive of neoplastic
etiology (caused by a benign
tumor or cancer) – likely
highgrade glioma.
04.09.
2020
Dr. Rana
Patir/
Dr. S.
Hukku
Underwent right side occipito
parietal craniotectomy with
right occipital lobectomy with
excision of tumor.
Also underwent adjuvant RT
(radiation therapy) to brain
lesion with adequate margins.
05.09.
2020
Neurosur
gery
Team
MRI
Fortis
Memorial
Research
Institute,
Gurugram
Right parietal craniotomy
(surgery). Enhancement in
bilateral fronto-parietal and
right occipital regions with
enhancement of tentorium
cerebri on right side.
T1 hypersensitivity to suggest
hemorrhage. Suggestive of
acute ischemia. Age related
diffuse cerebral atrophy.
Small foci of enhancement
O.M.P. 1413/2014 Page 7 of 20
seen around periphery of
surgical cavity to suggest
residual disease.
05.09.
2020
Dr.
Vineet
Datta
Datar
Cancer
Genetics
Positive for brain malignancy
(presence of a malignant
tumour; cancer).
Cells are positive for GFAP
(Glial fibrillary acidic
protein),
Nestin (neuroepithelial stem
cell protein), Olig2
(Oligodendrocyte lineage
transcription factor),
indicative of presence of
Circulating Glial Cells
(CGCs) in the given sample.
09.10.
2020
Dr.
Rahul
Jain –
Fortis
Hospital,
Shalimar
Bagh,
Delhi
Loss of appetite; General
weakness.
21.10.
2020
Dr.
Anupam
Bhargava
–
Max
Super
Specialit
y
Hospital,
Saket,
New
Delhi
Obstructed flow, poor flow.
Hesitency, straining, pain in
urethra, Back pain for three
months. On four occasions
had AUR (Acute Urinary
Retention) and required
catheterisation.
27.10.
2020
Dr.
Rahul
Jain
MRI
Fortis
Hospital,
Shalimar
Bagh, Delhi
In a post-operative case of
right occipital glioma, the
study reveals post operative
cavity in right occipital
region, as described with few
well-defined enhancing
lesions medial to the cavity -
likely residual disease.
30.11.
2020
Self MRI
Suggestive of ill-defined
nodular enhancing lesions
O.M.P. 1413/2014 Page 8 of 20
Mahajan
Imaging,
Rajinder
Nagar,
New Delhi
around the post op. cavity in
the right parasagittal occipital
region with mild perilesional
white matter edema.
Elevated rCBV (Relative
cerebral blood volume) in the
enhancing foci suggesting
residual/ recurrent lesion.
Interval appearance of a new
lesion in the anterior aspect
compared to previous CE-
MRI dated 27.10.2020. The
previously seen two discrete
enhancing lesions in medial
aspect now appear confluent
with increase in size.
28.04.
2021
Dr.
Rahul
Jain
HRCT
Chest
Saral
Diagnostics,
Pitampura,
Delhi
There are multiple patchy
areas of ground glass
opacities (hazy, increased
opacity of lung) in both
lungs, showing subpleural
predominance.
Multiple subpleural bands are
also seen in both the lungs.
Suggestive of covid-19
infection.
28.04.
2021
Dr.
Rahul
Jain
MRI
Saral
Diagnostics,
Pitampura,
Delhi
Irregular heterogeneous
enhancing lesions along post-
op bed with large amount of
surrounding edema (swelling
caused by excess fluid
trapped in the body's tissues)
in right temporo-parieto-
occipital lobe.
There is possibility of
recurrent disease.
26.05.
2021
Dr. S.
Hukku /
Dr.
Ranjana
Srivastav
a
MRI
BLK- MAX
Super
Speciality
Hospital,
Pusa Road,
New Delhi
Post-op cavity in right
occipital lobe with irregular
heterogeneously enhancing
lesions (soap bubble pattern
of enhancement) along the
superior and anterior aspects
with moderate perilesional
edema.
Age related cerebral atrophy
(loss of neurons and
connections between
O.M.P. 1413/2014 Page 9 of 20
neurons).
18.08.
2021
Dr. Rana
Patir -
Fortis
Memoria
l
Research
Institute,
Gurugra
m
Dizziness; Feeling of
Imbalance; Headaches;
Geographical disorientation.
31.08.
2021
Prof.
Vinod
Raina –
Fortis
Memoria
l
Research
Institute,
Gurugra
m
Speech difficulty – Slurring;
Loss of left eye vision;
Reduced vision in right eye;
Loss of stability – feels likely
to fall; Seizures; On and off
headache.
04.05.
2022
Dr.
Nitesh
Rohatgi
MRI
Mahajan
Imaging,
Defence
Colony,
New Delhi
Increase in edema &
enhancement anterior and
superior to the post-operative
cavity with increase in
perilesional edema in the
right temporal lobe.
Increased perfusion (rCBF-
Regional cerebral blood flow)
on 3D ASL (arterial spin
abelling) and rCBV on the
contrast enhanced MR
perfusion study.
Overall increase in the
disease process since the last
MRI.
06.05.
2022
Dr.
Nitesh
Rohatgi
–
Fortis
Flt. Lt.
Rajan
Dhall
Hospital,
Vasant
Kunj,
GBM (grade 4 glioma brain
tumor) positive for MGMT
(biomarker in patients
diagnosed with gliomas).
Increased perfusion.
Increase in edema and
enhancement anterior and
superior to the post-operative
cavity with increase in
perilesional edema.
O.M.P. 1413/2014 Page 10 of 20
New
Delhi
23.05.
2022
Dr. Rana
Patir -
Fortis
Memoria
l
Research
Institute,
Gurugra
m
Headache persists; Sense of
direction reduced; Forgetful.
26.05.
2022
MRI
Fortis
Memorial
Research
Institute,
Gurugram
rCBV values varying from
3.5 to more than 5 to suggest
high grade glioma.
Post-operative changes with
disease progression.
07.06.
2022
Dr. Rima
Khanna -
Fortis
Hospital,
Shalimar
Bagh,
Delhi
Multiple episodes of
abnormal smell followed by
nausea; Partial seizure.
13.06.
2022
Dr. Rima
Khanna -
Fortis
Hospital,
Shalimar
Bagh,
Delhi
Abnormal behaviour;
Forgetfulness; Partial seizure;
Recurrent falls due to
weakness in legs.
16.06.
2022
Dr. J.D.
Mukherji
Disoriented; Weakness;
Headache for 2 months;
During the aforementioned period of around 2 years, the Petitioner
due to his medical condition was not in a position to give
instructions to his Counsel and there was hardly any
communication between the Petitioner and his Counsel. The
Copies of deceased Petitioner’s medical records along with their
true typed copies are annexed as Document – 2 (Collectively).”
8. Placing reliance on the Judgment of the Hon’ble Supreme Court
O.M.P. 1413/2014 Page 11 of 20
in Mithailal Dalsangar Singh v. Annabai Devram Kini
4
, learned
Counsel for the Applicants submits that the approach of the Court
while considering an application for setting aside abatement ought to
be liberal, particularly where sufficient cause is demonstrated and the
lis is sought to be decided on merits rather than being non-suited on
technical grounds. The relevant paragraph of the said Judgment reads
as follows:
“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 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
4
(2003) 10 SCC 691
O.M.P. 1413/2014 Page 12 of 20
normally be interfered with by superior jurisdiction.”
(emphasis supplied)
9. It is submitted by the learned Counsel for the Applicants that
the Hon’ble Supreme Court in the aforesaid decision has, inter alia,
held that the expression “sufficient cause” under Order XXII Rule 9
CPC is to receive a liberal construction so as to advance substantial
justice, and that abatement should not ordinarily operate as a penal
consequence where the delay is bona fide and satisfactorily explained.
10. In view of the aforesaid, it is urged by the learned Counsel for
the Applicants that this Court ought to adopt a liberal and justice-
oriented approach while adjudicating the present Application, and
accordingly, set aside the abatement, and permit substitution of the
LRs of the deceased Respondent No. 1, thereby enabling adjudication
of the matter on merits.
11. Per contra, learned Senior Counsel appearing on behalf of the
Proposed Respondent No. 1(B) opposes the present Application and
submits that the entire foundation of the Applicants’ case, premised
upon the alleged medical incapacity of the deceased Petitioner during
the relevant period, is wholly misconceived and contrary to the
material placed on record.
12. It is further submitted by the learned Senior Counsel that the
deceased Petitioner, despite the assertions made in the Application,
was at all material times capable of attending to his legal and
commercial affairs and cannot be stated to have been incapacitated so
as to constitute “sufficient cause” within the meaning of Order XXII
Rule 9 CPC read with Section 5 of the Limitation Act.
13. Learned Senior Counsel for the Proposed Respondent No. 1(B)
refers to the pleadings and the documents placed on record to
O.M.P. 1413/2014 Page 13 of 20
demonstrate that the deceased Petitioner was actively engaged in legal
proceedings during the very period for which incapacity is alleged. It
is pointed out that the deceased Petitioner travelled to Chandigarh and
caused a caveat to be filed before the High Court of Punjab and
Haryana through the present counsel, which evidences both physical
mobility and the requisite mental capacity to take conscious legal
steps for the protection of his interests.
14. Learned Senior Counsel for the Proposed Respondent No. 1(B)
further relies upon a Resolution dated 31.12.2021 passed by M/s
Synthetic Inter Dyechem Pvt. Ltd., whereby the deceased Petitioner
was authorised to handle and conduct legal proceedings on behalf of
the said company. The said authorisation, reflecting the confidence
reposed in the deceased Petitioner to manage legal affairs of the
company, is stated to be wholly inconsistent with the plea of
incapacity now sought to be advanced.
15. It is submitted that a conjoint reading of the aforesaid facts,
when juxtaposed with the medical timeline relied upon in the
Application, reveals inherent contradictions. The acts of travelling,
filing a caveat, and being entrusted with legal responsibilities on
behalf of a corporate entity fall within the very period during which
the deceased Petitioner is claimed to have been incapacitated, thereby
rendering the said plea by the Applicants untenable.
16. Learned Senior Counsel appearing for the proposed Respondent
No. 1(B) has also drawn the attention of this Court to paragraph 5 of
the present Application, wherein it is averred that the deceased
Petitioner was not in a position to provide instructions to his counsel
and that there was hardly any communication between the Petitioner
and his counsel. Placing reliance on the said averments, learned Senior
O.M.P. 1413/2014 Page 14 of 20
Counsel submits that the same are factually incorrect and stand belied
by the material available on record.
17. Learned Senior Counsel further submits that the filing of the
caveat and the existence of the board resolution pertaining to the
relevant period clearly demonstrate that the deceased Petitioner was,
in fact, actively instructing counsel and participating in the legal
proceedings. These documents, therefore, directly negate the assertion
of incapacity and indicate suppression of material facts by the
Applicants.
18. In view thereof, it is submitted that no sufficient cause has been
made out by the Applicants for setting aside the abatement. The
Application, being founded on incorrect and misleading averments, is
liable to be dismissed on this ground alone.
ANALYSIS & DECISION:
19. This Court has heard learned counsel appearing on behalf of the
parties and, with their assistance, has carefully perused the documents
and material available on record.
20. The legal position governing applications under Order XXII
Rule 9 of the CPC read with Section 5 of the Limitation Act is well
settled and has been consistently elucidated in a catena of judicial
pronouncements.
21. It is trite that an application for setting aside abatement is to be
considered with a degree of latitude, with the overarching objective of
advancing substantial justice. Courts have repeatedly emphasised that
procedural rules are handmaids of justice and ought not to be applied
in a manner that defeats adjudication on merits. However, this liberal
approach is neither unbridled nor unconditional. The discretion vested
O.M.P. 1413/2014 Page 15 of 20
in the Court is circumscribed by the requirement that the applicant
must establish the existence of “sufficient cause” for the delay.
22. Such cause must be bona fide, reasonable, and free from any
element of negligence, deliberate inaction, or lack of due diligence. It
is equally well settled that the equitable jurisdiction of the Court
cannot be invoked by a litigant who has failed to act vigilantly or who
has approached the Court with unclean hands, including by
suppressing or misrepresenting material facts. The principles
applicable in considering applications for setting aside abatement has
been succinctly summarized by the Hon’ble Supreme Court in
Perumon Bhagvathy Devaswom v. Bhargavi Amma
5
, of which the
relevant portion reads as under:
“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
the ground of abatement.
(iii) The decisive factor in condonation of delay, is not the
length of delay, but sufficiency of a satisfactory
explanation.
5
(2008) 8 SCC 321
O.M.P. 1413/2014 Page 16 of 20
(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)
23. In the present case, the principal ground urged by the
Applicants for setting aside the abatement of proceedings qua the
deceased Respondent No. 1 is the alleged medical incapacity of the
deceased Petitioner during the relevant period. It is contended that
owing to a serious ailment, the deceased Petitioner was incapacitated
from effectively pursuing the present proceedings or from providing
necessary instructions to his counsel. In support of this contention,
reliance has been placed upon certain medical records, which have
been annexed to the application with a view to demonstrating the
severity of the ailment and the resultant inability of the deceased
Petitioner to attend and file the necessary application in the present
proceedings at that time.
24. However, upon a careful and holistic consideration of the
material placed on record, this Court finds that the aforesaid plea does
O.M.P. 1413/2014 Page 17 of 20
not inspire confidence and falls short of establishing “sufficient cause”
within the meaning of the applicable legal framework. The record, in
fact, reveals a series of circumstances which are inconsistent with the
plea of incapacity sought to be advanced. Notably, it is not in dispute
that during the very period for which the deceased Petitioner is alleged
to have been incapacitated, he undertook travel to Chandigarh and
caused a caveat to be filed before the High Court of Punjab and
Haryana. The act of filing a caveat necessarily presupposes a
conscious and deliberate decision to safeguard one’s legal interests,
which, in turn, requires active engagement with legal counsel and an
awareness of ongoing or anticipated proceedings.
25. In addition to the above, material has also been placed on record
indicating that the deceased Petitioner was authorised, by way of a
corporate resolution dated 31.12.2021, to conduct and manage legal
proceedings on behalf of a company, namely, M/s Synthetic Inter
Dyechem Pvt. Ltd. The existence of such authorisation during the
relevant period further demonstrates that the deceased Petitioner was
not only mentally alert but was also entrusted with responsibilities
requiring the exercise of judgment and active participation in legal
affairs. These circumstances, when read cumulatively, belie the
contention that the deceased Petitioner was rendered incapable of
attending to his legal obligations in the present proceedings.
26. The inconsistency between the plea of medical incapacity and
the demonstrated conduct of the deceased Petitioner assumes greater
significance in light of the specific averments made in the application,
particularly in paragraph 5 thereof, wherein it is asserted that the
Petitioner was not in a position to provide instructions to counsel and
that there was hardly any communication between the Petitioner and
O.M.P. 1413/2014 Page 18 of 20
his counsel concerning the present proceedings. The material on
record, however, clearly contradicts this assertion.
27. The filing of proceedings before another High Court and the
existence of a board resolution authorising legal action strongly
indicate that the deceased Petitioner was, in fact, actively engaging
with other legal processes. In the absence of any cogent explanation
reconciling these contradictory positions, the explanation offered by
the Applicants cannot be accepted as credible or bona fide.
28. It is also pertinent to underscore that abatement of proceedings
is not a mere technical consequence but entails serious legal
implications, including the accrual of a valuable right in favour of the
opposite party. Once such a right has crystallised, it cannot be lightly
interfered with, except upon the applicant establishing a sufficient and
convincing cause for the delay. The Court must balance the principles
of substantial justice with the equally important consideration of
finality in litigation. In the present case, the conduct of the deceased
Petitioner, as discernible from the record, does not reflect a situation
of unavoidable or involuntary inability, but rather indicates a lack of
due diligence in prosecuting the present proceedings.
29. In view of the aforesaid analysis, this Court is of the considered
opinion that the Applicants have failed to make out a case warranting
the exercise of judicial discretion for setting aside the abatement. The
explanation furnished is neither satisfactory nor credible and does not
meet the threshold of “sufficient cause” as contemplated under Order
XXII Rule 9 CPC read with Section 5 of the Limitation Act. The plea
of incapacity stands contradicted by the contemporaneous conduct of
the deceased Petitioner, and no plausible justification has been offered
by the Applicants for the delay in taking necessary steps in the present
O.M.P. 1413/2014 Page 19 of 20
proceedings.
30. Further, the reliance placed by the learned Counsel for the
Applicants on Mithailal Dalsangar Singh (supra) does not advance
their case. While the said judgment undoubtedly endorses a liberal and
justice-oriented approach in considering applications for setting aside
abatement, premised on the principle that a litigant should ordinarily
not be denied an opportunity to have a lis adjudicated on merits, it
simultaneously carves out a clear exception. The Hon’ble Supreme
Court has unequivocally held that such a liberal approach is not
warranted in cases where the party seeking relief is guilty of gross
negligence, deliberate inaction, or conduct bordering on abuse of
process. In such circumstances, the party disentitles itself from
invoking the discretionary and equitable jurisdiction of the Court.
31. In the considered view of this Court, the present case squarely
falls within the said exception. The material on record demonstrates
that the deceased Petitioner was actively engaged in legal affairs
during the relevant period, contrary to the assertions made in the
present Application. The Applicants have not only failed to establish
due diligence but have also sought to rely upon assertions that stand
contradicted by the record, thereby giving rise to a reasonable
inference of suppression of material facts. In such circumstances, no
indulgence can be granted, and the Applicants cannot claim the benefit
of a liberal approach.
32. Accordingly, the present Application is dismissed in the
aforesaid terms.
33. No Order as to costs.
O.M.P. 1413/2014 Page 20 of 20
O.M.P. 1413/2014, I.A. 8288/2018 (For modifications of orders
23.02.2015) & I.A. 11517/2018 (For Delay 44 days in filing the
Reply by the petitioner to I.A. No. 8288/2018)
34. List for consideration on 11.05.2026.
HARISH VAIDYANATHAN SHANKAR, J.
APRIL 10, 2026/tk/kr
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