1. Eviction suit — Death of sole defendant — Delayed application for substitution of legal representatives without separate limitation application — Trial court dismissed suit as abated — Appellate court allowed substitution. (Para 2 , 3 )
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IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
Vivek Jain, J.
Smt. Chanda Kacher And Others – Petitioners
Versus
Kamlesh Kacher – Respondents
Misc. Petition No. 429 of 2021
Decided On : 03-02-2026
1. Eviction suit — Death of sole defendant — Delayed application for substitution of legal representatives without separate limitation application — Trial court dismissed suit as abated — Appellate court allowed substitution. (Para 2 , 3 )
2. Dispute over whether a delayed substitution application must be filed as a separate miscellaneous judicial case and whether absence of express abatement or limitation prayers is fatal. (Para 4 , 5 , 7 )
3. Petition dismissed — appellate order allowing substitution of legal representatives and setting aside abatement upheld. (Para 19 , 20 )
No. While the suit remains pending, such an application is filed in the suit itself. The Code of Civil Procedure and Madhya Pradesh Civil Court Rules do not require a separate miscellaneous proceeding; a separate case arises only if the suit was already disposed of as abated. (Para 9 , 10 , 11 , 12 )
No. A prayer for substitution inherently includes a prayer for setting aside abatement in the interest of justice. The absence of an express Order 22 Rule 9 prayer or a separate Section 5 Limitation Act application is therefore not fatal if sufficient explanation exists. (Para 13 , 14 )
Yes, if the circumstances explain the delay. The applicant's awareness of death may preclude strict reliance on Order 22 Rule 10A, but delay is not fatal where trial proceedings remained stayed and the application was filed shortly after the stay was lifted. (Para 15 , 16 , 17 )
Courts should construe delay liberally and not be over-strict in requiring proof of sufficient cause, because setting aside abatement permits adjudication on merits; the applicant is not obliged to make regular inquiries about the other party's health or existence. (Para 18 )
ORDER :
Vivek Jain, J.
The present petition has been filed challenging the order dated 08.01.2021 passed by the appellate Court, whereby the appellate Court has set aside the order dated 26.10.2015 passed by the trial Court, by which the trial Court had rejected application under Order 22 Rule 4 CPC for substitution of legal representatives of sole defendant and consequently dismissed the suit as abated and consigned the file to the record room. In appeal, the appellate Court vide impugned order dated 08.01.2021, has allowed the application under Order 22 Rule 4 read with Rule 9 CPC and permitted substitution of legal representatives of sole defendant.
2. The necessary facts for the purpose of adjudication of the present petition are that a suit had been filed by the original respondent who was the original plaintiff against the original defendant. The legal representatives of original defendant are in this petition before this Court. The original plaintiff and original defendant were step-mother and step-son respectively and the suit was filed in the year 1999, which was for eviction of the original defendant who was the step-son of the original plaintiff. During the pendency of this petition, the original plaintiff has also died and is now represented by her son.
3. The original defendant expired on 22.06.2014 and an application for substitution of legal representatives was filed on 29.06.2015 which was almost one year after death of the original defendant and no separate application under Section 5 of the Limitation Act was filed along with the said application. Therefore, the trial Court had rejected the said application on the ground that it is barred by limitation because 150 days after date of death of the original defendant, application under Section 5 of the Limitation Act had to be filed which has not been filed. Even otherwise, the application was not found to have disclosed sufficient reason for the delay caused in filing of application for substitution and on these grounds, the substitution was rejected by the trial Court and the suit was dismissed as abated. Against that order, the original plaintiff approached the appellate Court and the appellate Court has set aside the order and directed substitution of legal representatives of original defendant.
4. The learned counsel for the petitioners, who are LRs of original defendant, has vehemently argued before this Court that no application for substitution of legal representatives can be filed in a suit after 90 days because the suit stands abated and, therefore, the application has to be filed as a separate MJC. It was further argued that the abatement is automatic after 90 days and even the application for setting aside abatement has to be filed within further 60 days and thereafter application for condonation of delay has to be filed. Therefore, it was the duty of the trial Court to have consigned the file to the Record Room after 90 days or as soon as the factum of death of deceased defendant came to notice of the trial Court which was after 90 days of death of deceased defendant and should have relegated the plaintiff to file application for setting aside abatement and substitution as separate proceedings in MJC.
5. It is further argued that no cogent reasons were assigned for condonation of delay because though the counsel for the defendants had not discharged his obligation under Order 22 Rule 10A CPC by intimating the factum of death of deceased defendant but the deceased defendant and the original plaintiff were step-son and step-mother and it could not be inferred that one of the parties did not know the fact of death of other party more so when the address of both the parties was one and the same and both the parties are occupying different portions of the same property. It is argued that it was not the case of unrelated parties and even in the application under Order 22 Rule 4 CPC, nothing has been pleaded by the original plaintiff which inspire confidence to
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