Delay in filing substitution petition can be condoned if a satisfactory explanation is provided.

CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH ORAL ORDER

9 08-12-2025 Re: I.A. No. 03 of 2025 The instant interlocutory application has been filed by the appellant under Order XXII Rule 4 read with Rule 9(2) of the Code of Civil Procedure, 1908 ( in short ‘CPC’) and under Section 5 of the Limitation Act, 1963 for condoning the delay in filing the substitution petition and thereafter, for substitution of the legal heirs of the deceased Plaintiff/Respondent No. 1 namely, Chitranjan Mukharjee.

2. Learned counsel appearing for the appellant submits that Respondent No. 1, Chitranjan Mukharjee, died on 20.12.2020 during the pendency of the appeal, his wife predeceased him in 2015 and one daughter also died in 2019, hence, he is survived by two daughters, whose details are mentioned in paragraph 1(i) and 1(ii) of the interlocutory application. It is further submitted that the appellant, residing in Motihari, had no knowledge of the respondent’s death, as the deceased had been living in Kolkata and the appellant’s earlier conducting lawyer failed to inform him about the death of respondent no. 1 and did not file a substitution petition despite being given the names of the legal heirs. Learned counsel submits that after the appellant learnt of the death on 02.01.2021, he immediately instructed his counsel to take steps, but no action was taken. Subsequently, a subsequent purchaser attempted forcible demolition of the structure on the suit land, and the appellant was then informed that no substitution had been made, preventing any legal relief, thereafter, the appellant changed his counsel, obtained the case file, and engaged new counsel, who filed the present substitution petition along with an application for interim injunction. It is lastly submitted that the delay is neither intentional nor deliberate and has been properly explained, so, the appellant prays for condonation of delay and for allowing the substitution of the legal heirs of the deceased Respondent No. 1.

3. On the other hand, learned counsel appearing on behalf of respondents opposed the prayer made by appellant’s counsel and submitted that the appellant has failed to explain the delay of 1708 days in filing the substitution petition within time from the date of knowledge of death of respondent no. 1 and he also failed to explain the “sufficient cause” for delay in fling the present substitution petition. In support of his submission, learned counsel has placed reliance upon the following judgment:–

(i) Shivamma (Dead) by LRs vs. Karnataka Housing Board & Ors., passed by the Hon’ble Supreme Court in Civil Appeal No. 11794 of 2025, arising out of Special Leave Petition (C) No. 10704 of 2019, its relevant paragraphs which have been referred are reproduced as under:–

“ 209. At this juncture, it would be apposite to refer to the decision of this Court in State of Rajasthan & Anr. v. Bal Kishan Mathur (Dead) through Legal Representatives & Ors. reported in (2014) 1 SCC 592, wherein this Court explained the ratio of the decision in Postmaster General (supra). This Court explained that as per Postmaster General (supra) there cannot be any preferential treatment towards the State or any of its instrumentality, when it comes to condonation of delay. It further explained that as long as there is no gross negligence or deliberate inaction or lack of bona fides, a broad and liberal approach should be adopted when dealing with an application for seeking condonation of delay. Unless the explanation furnished for the delay is wholly unacceptable or if no explanation whatsoever is offered or if the delay is inordinate and third-party rights had become embedded during the interregnum the courts should lean in favour of condonation. The relevant observations read as under: -

"8. It is correct that condonation of delay cannot be a matter of course; it is also correct that in seeking such condonation the State cannot claim any preferen