$~6 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) 359/2019 KAVITA SHARMA .....Plaintiff Through: Appearance not given.

versus KAMALJEET SHARMA .....Defendant Through: Mr. Udit Gupta, Advocate CORAM:

HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD

O R D E R

% 23.01.2026 I.A. 16723/2025 & I.A. 16724/2025

1. I.A. 16723/2025 though styled as one filed under Order XXII Rule 3 of CPC, however, it has actually been filed on behalf of the Plaintiff under Order XXII Rule 4 of CPC for bringing on record the Legal Heirs (LRs) of the deceased Defendant.

2. I.A. 16724/2025 has been filed on behalf of the Plaintiff under Order XXII Rule 9 of CPC for setting aside of the abatement.

3. The instant Suit has been filed by the Plaintiff for mandatory injunction, partition, mesne profits, and permanent injunction in respect of the Property bearing No. B-18, Kirti Nagar, New Delhi - 110015 [“Suit Property”].

4. It is stated that the Defendant passed away on 02.01.2025 leaving behind three LRs, namely, Smt. Suman Sharma (Wife), Mr. Ankush Sharma (Son) and Ms. Ankita Sharma, (Daughter).

5. The prescribed period of limitation under Article 120 of the Limitation Act for filing an application to bring on record the LRs of a party is 90 days from the date of death of a party. It is stated that the Plaintiff came to know about the death of the Defendant only on 22.01.2025. The period of 90 days for filing of the application for bringing on record the LRs of Defendant has expired on 22.04.2025. I.A. 16723/2025 for bringing on record the Legal Heirs (LRs) of the deceased Defendant has been filed by the Plaintiff on 29.04.2025. There is a delay of 07 days in filing the application for bringing on record the LRs of Defendant.

6. It is stated that the Plaintiff was unable to bring the legal representatives of the deceased Defendant on record in a timely manner, as she was out of the country and travelling abroad due to the birth of her grandson on 18.11.2024.

7. In view of the fact that there is a delay of 07 days only in filing the application for bringing on record the LRs of Defendant, this Court is inclined to condone the delay.

8. As far as the I.A. 16724/2025 for setting aside of the abatement is concerned, the Apex Court in Om Prakash Gupta v. Satish Chandra, 2025 SCC OnLine SC 291, has held that the application for setting aside of the abatement is in-built in the application for bringing on record the LRs of a party who passed away during the pendency of the Suit. Paragraph Nos.16 & 20 of the said Judgment read as under:

“16. The law, laid down in Ram Charan (supra), is clear. There seems to be no legal requirement that on the death of a defendant, an application for substitution in all cases has to be made by the plaintiff only and that, any application, made by the heir(s)/legal representative(s) of the deceased defendant seeking an order to allow him/them step into the shoes of the deceased defendant and to contest the suit, cannot be considered. Once an application has been made by either party and the court has been informed about the death of a party and who the heir(s)/legal representative(s) he has left behind, the only thing that remains for the court is to pass an order substituting the heir(s)/legal representative(s). Such being the case, we have no doubt in holding that the application moved by the heirs of Satish Chandra (Civil Misc. Substitution Application No. 211 of 1997), whereby the court was informed by them of his death and the heirs that he had left behind, amounted to an application for substitution which was legally permissible and valid and deserved consideration.

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20. The High Court having been duly informed of the death of Satish Chandra, and substitution having been prayed by the heirs of the deceased, it ought to have proceeded to consider such application and pass an order bringing the heirs of the deceased respondent on record. This, the High Court omitted to order, perhaps, due to inadvertence whereby pendency of the application for