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2000 Supreme(SC) 1161
SUPREME COURT OF INDIA
SHANKAR LAL
Vs.
Sakil Ahmed
Decided on July 25, 2000
The main legal point established in the judgment is that the failure to substitute a deceased defendant can lead to the abatement of the suit, and amended provisions of the law may not have retrospective effect.
Headnote:
Abatement - Substitution of Defendant - The court held that the suit had abated due to the failure to substitute the deceased defendant, and the amended provision of Order XXII, Sub-rule 4 of Rule 4 of Code of Civil Procedure did not have retrospective effect.
Fact of the Case:
The defendant no. 1 appealed against the suit for possession filed by the plaintiffs-respondents, arguing that the suit had abated due to the failure to substitute the deceased defendant no. 2.
Finding of the Court:
The court found that the suit had abated as the plaintiffs did not apply for substitution of defendant no. 2, and the amended provision of Order XXII, Sub-rule 4 of Rule 4 of Code of Civil Procedure did not have retrospective effect.
Issues: The main issue was whether the suit had abated due to the failure to substitute the deceased defendant no. 2.
Ratio Decidendi: The court held that under the provisions of Code of Civil Procedure as they existed at the relevant date, it was for the plaintiff to have taken steps for substitution of defendant no. 2, and in the absence of such steps, the suit was to abate.
Final Decision: The court allowed the appeal, set aside the decree of the trial court, and treated the suit as having abated.
Yes, there is significant delay in filing the impleading petition (substitution application) for the legal representatives of the deceased 1st defendant, which risks abatement of the suit under Order XXII Rule 3 CPC. (!) [1000341950003][1000341950004][1000341950005]
- The date of death (29/04/25) to the date of filing the impleading petition (15/11/25) spans approximately 200 days, far exceeding the 90-day limitation period for substitution following the death of a defendant. (!) [1000341950004]
- The plaintiff's knowledge of the death on 08/10/25 does not alter the starting point of the limitation period, which runs from the date of death itself; the plaintiff remains obligated to take proactive steps for substitution regardless of when or how knowledge is acquired. (!) [1000341950003][1000341950004][1000341950005]
- Even if the fact of death was not brought to the court's notice by any party (implying possible lack of knowledge), the plaintiff cannot escape the duty to substitute the deceased defendant, failing which the suit abates. (!) [1000341950004][1000341950005]
- Participation by other parties without objection does not waive the abatement or preclude raising the issue later.[1000341950004][1000341950005]
The suit is likely to be treated as abated unless the delay is condoned under Section 5 of the Limitation Act, 1963, upon a strong showing of sufficient cause (e.g., via Order XXII Rule 9(2) CPC), but mere late knowledge after 5+ months from death is unlikely to suffice given the plaintiff's strict duty.[1000341950004][1000341950005]
( 1 ) THIS appeal is at the instance of defendant no. 1. The plaintiffs-respondents herein filed a suit for possession against defendant nos. 1 and 2. Defendant no. 1 filed a written statement wherein it was stated that he and defendant no. 2 are the owners in possession of the land for the last twenty years. Defendant no. 2 put in appearance through Counsel. However, he did not file any written statement. During the trial of the suit, defendant no. 2, Poonam Chand, died on 1. 3,1974 leaving behind four sons, namely, Lal Chand, Bhura Ram, Nem Chand and Prabhu Dayal as his heirs. However, this fact was not brought to the notice of the trial court either by the plaintiffs or by the defendants. The trial court decreed the suit of plaintiffs-respondents. Defendant no. 1 preferred an appeal before the first Appellate Court and in the grounds of appeal, one of the objections taken was that in view of the fact that defendant no. 2, Poonam Chand, who died on 1. 3,1974 having not been substituted by his heirs, the suit had abated. The first Appellate Court was of the view that in view of the Order XXII Sub-rule 4 of Rule 4 of Code of Civil Procedure, the suit had not abated. Consequently, the appeal was dismissed. Defendant no. 1 thereafter, filed second appeal before the High Court but the same was also dismissed. It is against the said judgment, defendant no. 1 is in appeal before us.
( 2 ) LEARNED Counsel for the appellant urged that in the absence of substitution of defendant no. 2 by his heirs the suit had abated and the decree passed by the Court below is nullity. Learned Counsel also urged that Sub-rule 4 of Rule 4 of Order XXII was inserted to Code of Civil Procedure by Amendment Act 104 of 1976 which came into force with effect from 1st February, 1977 has no retrospective application, therefore, the suit filed by the plaintiffs had abated. Learned Counsel appearing for the plaintiffs-respondents argued that defendant no. 1 having participated in the proceedings before the trial court without any kind of objection, it is no longer open to him to raise the plea that suit had abated in the absence of substitution of deceased defendant no. 2.
( 3 ) IT is not disputed that defendant no. 2, Poonam Chand, died on 1. 3. 1974 leaving behind four adult sons. It is also not in dispute that the plaintiffs did not apply for substitution of defendant no. 2 either in the trial court or before the first Appellate Court. The question, therefore, arises whether under such circumstances, the plaintiffs can take benefit of Sub-rule (4) of Rule 4 of Order XXII. Subrule (4) of Rule 4 was brought on the Statute book by Act No. 104/76 with effect from 1. 2. 1977, which reads thus ;
" (4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place. "
( 4 ) ADMITTEDLY when defendant no. 2 died, the said provision was not on the Statute book. It is also not in dispute that the amended provision of Order XXI I, Sub-rule (4) of Rule 4 had no retrospective effect. Under the provisions as existed then, plaintiffs were required to substitute defendant no. 2 failing which suit was to abate under Rule 3 of Order 22 CPC. We are, therefore, of the view that plaintiffs cannot derive any benefit out of amended Sub-rule 4 of Rule 4 of Order XXI I CPC, as it was not in existence then.
( 5 ) COMING to the next question suffice it to say that under the provisions of Code of Civil Procedure as they existed at the relevant date, it was for the plaintiff to have taken steps for substitution of defendant no. 2 and in the absence of such steps suit was to abate. M
