A substitution application for a deceased party can be allowed despite delays if sufficient cause is shown, and the absence of formal condonation is not fatal.

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. 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 ins