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IN THE HIGH COURT OF ALLAHABAD, LUCKNOW BENCH
AMITABH KUMAR RAI
Johra Begam Alias Johra Khatoon – Appellant
Versus
State of U.P. – Respondent
| Table of Content |
|---|
| 1. court hears both parties' arguments. (Para 1 , 6) |
| 2. petitioner challenging dismissal based on procedural errors. (Para 2 , 3 , 4 , 5) |
| 3. appeal against deceased party is a nullity. (Para 7 , 8 , 9 , 10) |
| 4. formal defect in filing appeal against deceased. (Para 11 , 12 , 13 , 14) |
| 5. conditions for withdrawal under procedural law. (Para 15 , 16) |
| 6. the order of abatement is incorrect due to earlier procedural defects. (Para 17 , 18 , 19) |
| 7. court's direction for filing fresh appeal. (Para 20 , 21) |
JUDGMENT :
AMITABH KUMAR RAI, J.
1. Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents.
2. The instant writ petition has been filed challenging the order dated 10.12.2025 passed by District Judge, Gonda in Civil Appeal No.54 of 2024, Smt. Johra Begam @ Johra Khatoon vs. Ishhaq Ali , filed under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as “C.P.C.”), whereby the substitution application filed by the petitioner under Order XXII Rule 4 of C.P.C. along with the application for condonation of delay was rejected and the appeal was also dismissed, holding it to be abated due to the death of the sole respondent.
3
An appeal filed against a deceased sole defendant is a nullity; proper procedure requires withdrawal of the appeal with liberty to file a fresh one involving the legal heirs.
(1) Substitution – Limitation – Suit/appeal automatically abates when application to substitute legal representatives of deceased party is not filed within prescribed limitation period of 90 days fro....
Courts should adopt a liberal approach to substitution and abatement to prioritize substantial justice over procedural technicalities.
Legal representatives of deceased parties can seek substitution; amendments to pleadings are permitted to promote effective adjudication and safeguard substantive rights over rigid procedural complia....
The main legal point established in the judgment is the mandatory requirement for the court to determine the legal representative of a deceased party when a dispute arises, as per Order 22 Rule 5 of ....
Merely because the evidence of respondent/defendant and Prabhakar Rao (PW-2) was not repeated all over again, it cannot be held that the appellant/ plaintiff could be non-suited on this ground.
The court affirmed that a plaintiff can substitute legal representatives and condone delay if unaware of a defendant's death, emphasizing good faith in procedural compliance.
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