The court held that failure to substitute a deceased party in a suit can render the judgment a nullity, allowing for the addition of legal heirs and condonation of delay in substitution.

JUDGMENT :

ANUBHA RAWAT CHOUDHARY, J.

I.A. No. 236 of 2025 with I.A. No. 3030 of 2025

1. Learned counsel for the appellants has submitted that I.A. No. 236 of 2025 has been filed under Order I Rule 10, Order XXII Rule 3 & 9 read with Section 151 of CPC for addition of party. He submits that the plaintiff No. 4, namely, Shankar Mahto had expired during trial on 23.05.2023 and the suit was decided vide judgment dated 29.02.2024, but the plaintiff No. 4 was never substituted and consequently the judgment and decree is interalia in connection with a person who had already expired. He submits that the legal heirs and successors of plaintiff No. 4 have already appeared pursuant to notice issued by this Court and they may be formally added as performa respondents.

2. The learned counsel has further submitted that I.A. No. 3030 of 2025 has been filed seeking condonation of delay of 497 days for substitution of legal heirs of original plaintiff No. 4.

3. The learned counsel for the respondents has opposed the prayer and has submitted that the two heirs of plaintiff No. 4 was sufficiently represented before the Court and therefore no useful purpose will be served by adding them party in this proceeding. He has also submitted that the delay has not been property explained. He has relied upon the judgment passed by Hon’ble Division Bench in L.P.A. No. 475 of 2023 arising out of writ proceeding and has referred to paragraph 34 of the said judgment to submit that if the delay is not sufficiently explained, then the petition is to be dismissed.

4. Learned counsel for the appellants, in response, has submitted that so far as delay is concerned, after death of plaintiff No. 4, the other appellants were not aware about the niceties of law and they did not inform the counsel who was appearing in the case. He submits that the judgment passed by the learned court below would be a nullity and accordingly it is in the interest of the respondents to allow addition of party.

5. The learned counsel for the appellants has relied upon the judgment passed by the Hon’ble Supreme Court reported in (2016) 1 SCC 607 (Banwari Lal (Dead) By Legal Representatives & Anr. Vs. Balbir Singh) paragraph 6, 7, 9 and 11 and the judgment reported in (2005) 6 SCC 300 (Kishun @ Ram Kishun (Dead) through Lrs. Vs. Behari (dead) By Lrs.) paragraph 6 and 9 and also the judgment passed by this Court in C.M.P. No. 928 of 2022

6. It is not in dispute that the plaintiff No. 4 had expired during trial on 23.05.2023 and the judgment was passed on 29.02.2024 and no substitution of plaintiff No. 4 was carried out. Consequently, as per the decree, name of plaintiff No. 4 finds place who had expired during the trial.

7. Considering the facts and circumstances of this case, this Court finds that the fact that the plaintiff No. 4 was dead was not brought to the notice of the concerned court and it was only when the defect was pointed out by the office, I.A. No. 236 of 2025 seeking addition of party has been filed. The fact remains that in the decree, a dead person finds place name. The fact that his interest was being represented by the other plaintiffs or not will be taken care of only when the first appeal is finally decided and this Court will also consider as to whether on this ground the first appeal is at all required to be remanded back to the concerned court. The law is also equally well-settled that the first appeal is a continuation of suit. Considering the totality of facts and circumstances, I.A. No. 236 of 2025 seeking addition of party is hereby allowed.

8. So far as I.A. No. 3030 of 2025 seeking condonation of delay is concerned, being satisfied with the cause shown, the same is allowed.

9. Learned counsel for the appellants is directed to insert the name of legal heirs and successors of original plaintiff No. 4 as performa respondents in the present case.

10. The records have already been received from the concerned court.

11. Post this case on 14.07.2025 under the heading for ‘final d