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NEUTRAL CITATION NO. 2026:MPHC-JBP:9856

1 MP-429-2021

IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

BEFORE

HON'BLE SHRI JUSTICE VIVEK JAIN

rd

ON THE 3 OF FEBRUARY, 2026

MISC. PETITION No. 429 of 2021

SMT. CHANDA KACHER AND OTHERS

Versus

KAMLESH KACHER

Appearance:

Shri Arvind Kumar Shrivastava - Advocate for petitioners.

Shri Quazi Fakhruddin - Advocate for respondent.

ORDER

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

Signature Not Verified

Signed by: PREM SHANKAR

MISHRA

Signing time: 23-02-2026

17:44:03

NEUTRAL CITATION NO. 2026:MPHC-JBP:9856

2 MP-429-2021

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

Signature Not Verified

Signed by: PREM SHANKAR

MISHRA

Signing time: 23-02-2026

17:44:03

NEUTRAL CITATION NO. 2026:MPHC-JBP:9856

3 MP-429-2021

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 u