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2025 DIGILAW 1346 (ALL)

Deepak Prasad (Deceased) v. Ajay Prasad

2025-11-20

MANISH KUMAR NIGAM

body2025
JUDGMENT : Manish Kumar Nigam, J. 1. Heard learned counsel for the revisionist and perused the record. 2. This revision has been filed against the order dated 12.12.2024 passed by the trial court i.e. Civil Judge (Senior Division), F.T.C., District Bareilly in O.S. No. 348 of 2019 allowing the application filed by the plaintiff in the suit for substitution for substituting the heirs of deceased defendant and for amendment in the plaint which necessitated because of the death of sole defendant. 3. By order dated 24.04.2025, notice was issued to the respondent. Steps were taken by the revisionist and service upon the respondent was found sufficient by order dated 2.09.2025. Two weeks’ time was granted by order dated 02.09.2025 to the respondent to file counter affidavit. However, neither counter affidavit filed by the respondent nor anybody has appeared on behalf of respondent. Hence the matter is taken in his absence. 4. Brief facts of the case are that O.S. No. 348 of 2019 was instituted by the plaintiff/respondent for the relief of mandatory injunction in favour of the plaintiff and against sole defendant directing the defendant to deliver the possession of the house in dispute, boundaries of which given in the plaint itself. During pendency of the suit, sole defendant Deepak Prasad died on 12.10.2022 leaving behind revisionists as his heirs and legal representatives. On 16.03.2023, the substitution application was filed by the power of attorney holder of the plaintiff under Order XXII Rule 4 C.P.C. for substituting the heirs of deceased defendant. The application was also filed under Order VI Rule 17 C.P.C. for necessary amendment necessitated by the death of deceased defendant. On objection being filed by the heirs of deceased defendant, an application for condonation of delay filed on 16.10.2023 by the plaintiff/respondent. The revisionist filed their objection to delay condonation application on 30.04.2024. By the order impugned, i.e. order dated 12.12.2024, the delay was condoned and the substitution application as well as prayer for amendment was allowed. Hence, the present revision. 5. It has been contended by learned counsel for the revisionists that the substitution application was filed with delay and no application was filed along with substitution application for condonation of delay. By the order impugned, i.e. order dated 12.12.2024, the delay was condoned and the substitution application as well as prayer for amendment was allowed. Hence, the present revision. 5. It has been contended by learned counsel for the revisionists that the substitution application was filed with delay and no application was filed along with substitution application for condonation of delay. The application for condonation of delay was filed subsequently on 16.10.2023, and therefore, the court below erred in law in allowing the application for substitution as the delay condonation application was filed subsequently and not along with substitution application. 6. It has been further contended by learned counsel for the revisionist that after the expiry of period of 90 days from the date of death of defendant, the suit abated and no application was filed by the plaintiff/respondent for setting-aside the abatement. The substitution application cannot be allowed unless the abatement is set-aside. 7. It has been further contended by learned counsel for the revisionists that the objections taken by the revisionists before the court below to the application filed for condonation of delay has not been dealt with by the court below and therefore, the order passed by the court below is bad in law. 8. Before considering the submissions made by learned counsel for the revisionists it would be appropriate to consider the provisions of the Limitation Act. 9. Section 3 of the Limitation Act provides bar of limitation. Section 3 of the Limitation Act, 1963 is quoted as under:- “ 3. Bar of limitation.- (1)Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.” 10. Section 5 of the Limitation Act provides for extension of prescribed period in certain cases and the same is quoted as under:- “ 5. Extension of prescribed period in certain cases .- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.-The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.” 11.Section 5 of Limitation Act provides that an appeal or an application may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Section 5 in fact has been incorporated to save those innocent litigants who either under misapprehension or miscalculation, under bona fide belief or because of the inevitable circumstances could not bring the proceedings before the Court within limitation. It is the power which is given to the Court to condone delay and extend the limitation. It is for the Court to satisfy itself that the sufficient cause exists or not to condone the delay. If the Court on the facts presented before it comes to the conclusion that the delay deserves to be condoned then the Court is duty bound to save the party from unnecessary sufferance’s and would permit the appellant to go into the arena of their legal rights of the matter after removing the hurdle of limitation. 12.So far as the contention of the learned counsel for the revisionist that application for condonation of delay filed under Section 5 of Limitation Act must accompany the application for substitution and in case the application is filed subsequent to the filing of the application for substitution, the same cannot be considered and allowed, is misconceived. 13.This Court in case of Surendra Mani v. State of U.P. and 5 others reported in 2025 (1) ADJ 780 has held in paragraph no. 24 as under: “24.In view of the law laid down by Hon’ble Supreme Court, this Court and various other High Courts, I am also of the opinion that for condonation of delay under Section 5 of the Limitation Act, a formal application would not be required, if the facts presented before the court satisfies the judicial consciousness of the Court that the applicant before it was prevented for sufficient cause in bringing the proceedings well within limitation. In case, instead of moving a formal application for condonation of delay, averments has been made by a party relating to sufficient cause for not initiating the proceedings well within time in the application or memo of appeal or revision supported by an affidavit with a prayer made therein for condonation of delay will not be fatal for want of separate application for condonation of delay. If the Court is of the opinion that in absence of formal application, the delay cannot be condoned then, it is always the duty of the Court to give an opportunity to the appellant before it to move an application explaining the cause for delay and seek condonation under Section 5 of the Limitation Act. The applicant must get proper opportunity to explain the circumstances which prevented it from drawing proceedings well within time…...” 14. Order 41 Rule 3-A of the Code of Civil Procedure as added in 1976 provides as under:- “3A. Application for condonation of delay. (1)When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. (2)If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be. (3)Where an application has been made under sub-rule (1) the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule 11, decide to hear the appeal.” 15.The Supreme Court in Case of State of Madhya Pradesh and another Vs. Pradeep Kumar and another ; reported in (2000) 7 SCC 372 while interpreting the provisions of sub-Rule 1 of Rule 3-A of Order 41 C.P.C. held that filing of memorandum of appeal without application for condonation of delay will not be fatal. Unintentional lapse of a litigant should not result in closing of doors of the Court permanently. Pradeep Kumar and another ; reported in (2000) 7 SCC 372 while interpreting the provisions of sub-Rule 1 of Rule 3-A of Order 41 C.P.C. held that filing of memorandum of appeal without application for condonation of delay will not be fatal. Unintentional lapse of a litigant should not result in closing of doors of the Court permanently. The word “shall” in Rule 3-A (1) does not foreclose the chance to rectify a mistake and Court is within jurisdiction in returning the memorandum of appeal to the party concerned as defective. Such party can then cure, the defect and present the appeal again. The paragraph No. 11 of the judgment in case of State of Madhya Pradesh Vs. Pradeep Kumar (supra) are quoted as under:- “11. No doubt sub-rule (1) of Rule 3-A has used the word "shall". It was contended that employment of the word "shall" would clearly indicate that the requirement is peremptory in tone. But such peremptoriness does not foreclose a chance for the appellant to rectify the mistake, either on his own or being pointed out by the court. The word "shall" in the context need be interpreted as an obligation cast on the appellant. Why should a more restrictive interpretation be placed on the sub- rule? The rule cannot be interpreted very harshly and make the non-compliance punitive to an appellant. It can happen that due to some mistake or lapse an appellant may omit to file the application (explaining the delay) along with the appeal.” 16. Thus while interpreting the provisions of Sub-Rule (1) of Rule 3A of Order XLI C.P.C. where the statute required for filing an application for condonation of delay, the Supreme Court has interpreted the same not to be fatal. Neither Order XXII C.P.C. nor Limitation Act provides that application under Section 5 of Limitation Act must be filed along with application for substitution. 17.So far as the submission of learned counsel for the revisionist that after the expiry of period of 90 days as provided by Article 120 of the Limitation Act, the suit abated and unless an application is made for setting aside the abatement, application for substitution cannot be allowed, is also misconceived. 18.This Court in case of Shakuntala Devi v. Banwari Lal and Ors. 18.This Court in case of Shakuntala Devi v. Banwari Lal and Ors. reported in AIR 1977 All 551 , held that an application for substitution could be treated as an application for setting aside the abatement. 19.The Supreme Court in case of Mithailal Dalsangar Singh and Others v. Annabai Devram Kini and Ors. /b>. reported in (2003) 10 SCC 691 , in paragraph no. 8, 9 & 10 has held as under: “8. In as much 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 abatement. So also a prayer for setting aside abatement as regard 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 abateed, 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 upper most 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………….. 10. 9. The courts have to adopt a justice oriented approach dictated by the upper most 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………….. 10. …………………...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.” 20. The limitation for filing an application for setting aside the abatement is 60 days from the date of abatement which has not expired in the present case. Not filing the separate application for setting aside abatement will not be fatal and prayer for setting aside abatement is implicit in the application for substitution. 21.The last submission made by learned counsel for the revisionist that the objection filed by the revisionists to the application under Section 5 of the Limitation Act were not dealt with by the court below and the order does not record any reason for allowing the substitution application, is also of no avail as the same are not enough for setting aside the impugned order, in exercise of revisional jurisdiction unless failure of justice or irreparable injury has been established as required by second proviso to Clause (ii) of Section 115 C.P.C. Application has been allowed subject to payment of cost of Rs. 500/- to the revisionist. 22.This Court in case of Dr. Sakeel Ahmed v. Smt. Sabiha Khatoon reported in 1990 RD 37 , has held as under: “the order, no doubt, does not indicate the reasons for allowing the restoration application. But, that is not enough for setting aside the order. 500/- to the revisionist. 22.This Court in case of Dr. Sakeel Ahmed v. Smt. Sabiha Khatoon reported in 1990 RD 37 , has held as under: “the order, no doubt, does not indicate the reasons for allowing the restoration application. But, that is not enough for setting aside the order. As required by clause (ii) of the second proviso to Section 115 of the Code, as applicable in the State of Uttar Pradesh, it has to be established that there would be a failure of justice, or the aggrieved party shall suffer and irreparable injury if the impugned order is allowed to stand”. 23.This Court having power co-extensive with the powers of the court below to satisfy itself about the sufficiency of the cause for not filing the application within time, the delay condonation application has been examined by me and from the perusal of the same it cannot be said that there is a deliberate delay on the part of the plaintiff/respondent in filing the substitution application. In the delay condonation application, it has been stated that Pairokar of the plaintiff went out of station who was the power of attorney on behalf of plaintiff Ajay Prasad and therefore, the application could not be filed within the limitation period. 24.Further in case of Ishwari and others v. D.D.C and others reported in 1990 RD 175 , this Court has held as under: “Matter may be viewed from another angle. After the C.P.C. (Amendment) Act, 1976 Rule 10-A has been added to Order XXII (Twenty Two) which provides that now it is the duty of the defendant, respondent or his counsel to bring this fact to the notice of the court that a particular party is dead. Thereafter, the court shall cause notice to be given to the other party. Special provision has been made that the contract between the pleader and the deceased party shall be deemed to subsist. This new provision has been inserted with a view, that, just delay in making substitution application within 90 days or case other wise abated within another 60 days may not be taken normally as defence by the counsel for the otherwise. In this view of the matter intention of the legislature is manifest that in substitution matters much emphasis need not be given on the delay cause in moving the substitution application. In this view of the matter intention of the legislature is manifest that in substitution matters much emphasis need not be given on the delay cause in moving the substitution application. The court may make a realistic approach in the matter and see that substantial justice is done between the parties and matter does not drag on unnecessarily.” 25.In the present case, I am of the view that the substitution application has been correctly allowed and the delay has correctly been condoned by the trial court. 26.In view of the above, no illegality found in the order impugned and revision is dismissed 27.No order as to costs.