A simple prayer for substitution of legal heirs implicitly includes a request to set aside abatement, allowing cases to proceed on merits despite procedural delays.

ORDER :

BIRENDRA KUMAR, J.

1. This Civil Revision is against order dated 01.12.2023 passed in Civil Suit No.182/2020, whereby, the learned trial judge has allowed the prayer of the plaintiff to substitute the legal heirs of deceased - defendant No.7 - Radha. Prayer was made under Order XXII Rule 4 CPC along with an application filed under Section 5 of the Limitation Act for condonation of delay in making the prayer.

2. During pendency of the suit, defendant No.7 Radha died on 16.02.2022. This fact came to the notice of the plaintiff from the counsel for the respondent on 11.11.2022. Thereafter, on 18.11.2022, an application under Order XXII Rule 4 CPC was filed for substitution of legal heirs of defendant No.7 – Radha. On the same day, an application under Section 5 of the Limitation Act was also filed stating therein that the plaintiff came to know about the death of defendant No.7 – Radha only on 11.11.2022 and on the same day, filed an application to the trial court as it was date; to the effect that very soon the plaintiff would file substitution application and accordingly, substitution application was filed on 18.11.2022.

3. Learned counsel for the petitioners submits that as per Article 120 of the Limitation Act, the prayer for substitution was required to be made within 90 days of the date of death and if it was not made within 90 days, the suit against the deceased – defendant No.7 got abated and for setting aside abatement, further 60 days was allowed. Learned counsel for the petitioners further contends that the plaintiff had knowledge of death of defendant No.7 – Radha since very inception because plaintiff had participated in the last rituals of Radha. It was duty of the plaintiff to substitute the legal heirs within time.

4. Learned counsel next contends that Rule 9 of Order XXII CPC requires prayer for seting aside abatement arising out of death of Radha in the case on hand, which was not made. Unless prayer for substitution could have been made under Order XXII Rule 9 CPC, there is no question of setting aside abatement. Unless abatement was set aside, the substitution could not have been allowed.

5. The provisions of Order XXII Rule 9 CPC is being reproduced below:-

“9. Effect of abatement or dismissal. -

(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.

(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.

(3) The provisions of section 5 of the Indian Limitation Act, 1877 (15 of 1877), shall apply to applications under Sub-rule(2).

[Explanation.- Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order.”

6. Learned counsel for the petitioners has relied on the judgment of the Hon’ble Supreme Court in Gurnam Singh (D) Thr. Lrs. & Ors. Vs. Gurbachan Kaur (D) Thr. Lrs. & Ors. vide Civil Appeal No.5671/2017 (arising out of SLP (c) No.26798/2011) decided on 27.04.2017.

In para 21 of the aforesaid judgment, the Hon’ble Supreme Court observed as follows:-

“21. In our considered view, the appeal could be revived for hearing only when firstly, the proposed legal representatives of the deceased persons had filed an application for substitution of their names and secondly, they had applied for setting aside of the abatement under Order 22, Rule 9 of the Code and making out therein a sufficient cause for setting aside of an abatement and lastly, had filed an application under Section 5 of the Limitation Act seeking condonation of delay in filing the