Substitution of deceased parties under procedural rules is permissible when timely notice was not received, balancing the interests of justice.

CORAM: HONOURABLE MR. JUSTICE KHATIM REZA ORAL ORDER

14 05-12-2025 I.A. No. 5 of 2025

1. This interlocutory application has been filed under order XXII, Rule 4(4) of the Code of Civil Procedure for exemption of filing substitution petition with regard to deceased respondent no. 20 namely, Ram Kishun who died during the pendency of this appeal.

2. Learned counsel for the appellant further submitted that respondent no. 20 neither appeared nor filed written statement nor contested the matter at any stage of the proceedings.

3. Considering the aforesaid facts and averments made in the interlocutory application, the interlocutory application is allowed.

4. Office is directed to delete the name of respondent no. 20 from the memo of appeal at the risk of the appellant.

I.A. No. 4 of 2024

5. This interlocutory application has been filed for substituting the name of the heirs of respondent no. 1, namely, Mazhar Imam who died on 19.01.2020 leaving behind his heirs and legal representatives whose details are mentioned in paragraph 11 of the instant interlocutory application as well as paragraph 4 of the supplementary affidavit filed in continuation of I.A. No. 4 of 2024. It is also prayed for substituting the remaining heirs (daughters) of respondent no. 41 and setting aside abatement against respondent no. 41 namely Ram Chandra Mehta who died on 14.02.2008 during the pendency of title appeal no. 7 of 2001 leaving behind his heirs and legal representatives whose details are mentioned in paragraph 12 of the interlocutory application. It is submitted that some of the legal heirs of respondent no. 41 are already on record as appellant no. 1 to 4. It is further submitted that daughters of deceased respondent no. 41 have not been made party in the memo of appeal and he prayed for substituting their names in place of respondent no. 41 in the present appeal.

I.A. No. 2 of 2024

6. This interlocutory application has been filed for condonation of delay in filing setting aside abatement against respondent no. 1 and 41.

7. Earlier the notices were issued to the heirs of respondent no. 1 and 41. Learned counsel for the heirs of the deceased respondent no. 1 are already appeared in this case. Learned counsel for the appellant submitted that respondent no. 1 died on 19.01.2020 and appellant has no knowledge about the death of respondent no. 1 and 41. It is further submitted that matter was placed on 01.07.2024 before the bench due to non- compliance of the order dated 28.06.2024 and on that day learned counsel for the respondent nos. 1 and 2 has informed the court that respondent no. 1 died during the pendency of this appeal. Soon thereafter, learned counsel for the appellants contacted and informed this fact to the appellants and requested them to furnish exact date of death of the deceased respondent no. 1 and 41 as well as other deceased respondent. It is submitted that due to COVID 19 pandemic after knowledge of the death of the respondents, the appellant could not file the substitution petition with regard to the deceased respondents due to which some delay occurred. It is further submitted that some of the heirs of the deceased respondent no. 41 namely 41(i) to 41(iv) are already on record as appellant no. 1, 2, 3 and 4 respectively. No question of abatement for not mentioning of the left out of the daughters of the deceased respondent no. 41 and prayed for the daughters of the deceased respondent no. 41 may be substituted in his place.

8. On the other hand, learned counsel for the heirs of respondent no. 1 appeared but chose not to file any objection to the substitution petition and setting aside abatement.

9. Considering the aforesaid facts and averments made in the interlocutory applications, the interlocutory applications i.e. I.