Searching Case Laws & Precedent on Legal Query.....!
Scanned Judgements…!
Searching Case Laws & Precedent on Legal Query.....!
Scanned Judgements…!
Maintainability of composite petitions for setting aside abatement and condonation of delay - Courts recognize that applications seeking to set aside abatement and those for condonation of delay are interconnected but distinct. A composite petition that combines both without explicitly praying for setting aside abatement or seeking condonation may still be deemed maintainable if the relief for setting aside abatement is implicitly sought through the application for substitution or other pleadings. However, explicit prayers are generally preferred to avoid technical objections. ["Heirs of Deceased Bhupatbhai Shivabhai Chhaliya VS Sejalben Kiritbhai Wadhvana - Gujarat"] ["HEIRS OF DECEASED BHUPATBHAI SHIVABHAI CHHALIYA(DECEASED) vs SEJALBEN KIRITBHAI WADHVANA - Gujarat"] ["Deepak Prasad (Deceased) vs Ajay Prasad - Allahabad"]
Necessity of specific prayer for setting aside abatement and condonation - Several judgments emphasize that a prayer for setting aside abatement must be clearly made, either separately or implicitly, often through the application for substitution. Courts tend to interpret petitions for substitution as also encompassing a prayer for setting aside abatement, especially if the application discusses the death of a party and the need to bring legal representatives on record. Conversely, failure to explicitly request setting aside abatement or condonation can lead to rejection of such relief. ["Deepak Prasad (Deceased) vs Ajay Prasad - Allahabad"] ["Jhabbu Lal VS Purroo - Madhya Pradesh"] ["JHABBU LAL VS PURROO - Madhya Pradesh"] ["JHABBULAL @ MEHTAR LAL SAPAHA VS PURROO - Chhattisgarh"]
Role of delay and procedural technicalities - Courts generally adopt a liberal approach towards condoning delay in applications for setting aside abatement, recognizing the importance of substantial justice over technicalities. Orders refusing to condone delay or to set aside abatement solely on procedural grounds are often reversed if sufficient cause is demonstrated, especially when the delay is explained reasonably. The principles laid down by the Supreme Court, such as in Perumon Bhagvathy Devaswom v. Bhargavi Amma, support this liberal stance. ["Deepak Prasad (Deceased) vs Ajay Prasad - Allahabad"] ["Chandra Bhusan Kishore VS Shri Parash Nath Singh - Patna"] ["M/S GLOBAL AGRO CORPORATION PVT. LTD. Vs SHRI AJAY SHARMA & ANR. - Delhi"] ["Dinesh Kumar Sahu VS Urmila Devi, wife of Dinanath Prasad - Jharkhand"]
Orders under Order XXII Rule 9 and Rule 4 - The legal framework mandates that applications for setting aside abatement must be supported by a specific prayer under Order XXII Rule 9, or at least be accompanied by an application for condonation under Section 5 of the Limitation Act. Orders refusing to set aside abatement without such support are generally considered not maintainable. Courts have held that applications under Rule 4 that do not explicitly seek to set aside abatement or are not supported by a Rule 9 application are insufficient. ["Jhabbu Lal VS Purroo - Madhya Pradesh"] ["JHABBU LAL VS PURROO - Madhya Pradesh"] ["JHABBULAL @ MEHTAR LAL SAPAHA VS PURROO - Chhattisgarh"] ["Smt. Geeta vs Smt. Kali Bai - Madhya Pradesh"]
Implicit vs. explicit prayers - While explicit prayers are ideal, courts have sometimes deemed that an application for substitution or related pleadings implicitly include a prayer for setting aside abatement, provided the context indicates such relief. Nevertheless, explicit requests are preferred to ensure procedural correctness and avoid rejection. ["Sachida Nand Yadav VS Dinesh Yadav - 1991 0 Supreme(Pat) 114"] ["Harendra Nath Das and others vs Surja Kr. Das and others - Calcutta"]
Analysis and Conclusion:A composite petition that seeks to set aside abatement and also includes an application for condonation of delay is generally maintainable if it clearly or implicitly requests both reliefs. Courts recognize the close relationship between the two, but procedural rules under Order XXII and the Limitation Act require specific or at least implicit prayers for setting aside abatement, supported by a prayer for condonation when delays are involved. Failure to explicitly seek setting aside abatement or to support the application with a prayer for condonation can lead to rejection. Nonetheless, courts tend to be liberal in allowing such applications if sufficient cause is shown and the relief is reasonably inferred from the pleadings.References: ["Heirs of Deceased Bhupatbhai Shivabhai Chhaliya VS Sejalben Kiritbhai Wadhvana - Gujarat"] ["HEIRS OF DECEASED BHUPATBHAI SHIVABHAI CHHALIYA(DECEASED) vs SEJALBEN KIRITBHAI WADHVANA - Gujarat"] ["Deepak Prasad (Deceased) vs Ajay Prasad - Allahabad"]
In the intricate world of civil litigation, the death of a party can abruptly halt proceedings through abatement under Order XXII of the Code of Civil Procedure (CPC), 1908. This raises a critical question for litigants: whether a composite petition for setting aside the abatement and also for condonation of delay in preferring the application for setting aside the abatement is maintainable?
The answer, grounded in judicial precedents, is generally yes—especially when filed beyond the 150-day limitation period. Courts favor such composite applications to promote substantial justice, applying a liberal construction. This post delves into the timelines, legal sequence, court interpretations, and practical guidance, drawing from key rulings. Note: This is general information, not specific legal advice. Consult a qualified lawyer for your case.
Abatement occurs automatically if legal representatives (LRs) are not substituted within 90 days of a party's death (Article 120, Limitation Act, 1963). Once abated, a separate application to set aside abatement must be filed within 60 days (Article 121), totaling 150 days from death. Om Prakash Gupta alias Lalloowa (Now Deceased) VS Satish Chandra (Now Deceased) - 2025 3 Supreme 79
If filed within 150 days, no condonation under Section 5 of the Limitation Act is needed: an application if filed within the total period of 150 days of the date of death... within the prescribed time then... the provisions contained in Section 5 is not attracted. Baji Lal Mishra VS Bhagwati Sharan Mishra - 2001 0 Supreme(Pat) 993
Post-150 days, the recommended approach is a composite petition bundling:- Substitution of LRs.- Setting aside abatement under Order XXII Rule 9.- Condonation of delay under Section 5 specifically for the delayed set-aside application.
This sequence is explicitly endorsed: The proper sequence to be followed... is an application for substitution within 90 days of death and if not filed, to file an application for setting aside the abatement within 60 days and if that too is not filed, to file the requisite applications for substitution and setting aside the abatement with an accompanying application for condonation of delay in filing the latter application, i.e., the application for setting aside the abatement. Om Prakash Gupta alias Lalloowa (Now Deceased) VS Satish Chandra (Now Deceased) - 2025 3 Supreme 79
Courts uphold such composites as maintainable, rejecting hyper-technical objections. A single petition suffices, with condonation targeted at the set-aside step, not substitution directly. Baji Lal Mishra VS Bhagwati Sharan Mishra - 2001 0 Supreme(Pat) 993Om Prakash Gupta alias Lalloowa (Now Deceased) VS Satish Chandra (Now Deceased) - 2025 3 Supreme 79
Indian courts adopt a pragmatic, liberal stance on abatement matters, distinguishing them from routine delay condonation: the consideration for condonation of delay under Section 5 of Limitation Act and setting aside of the abatement under Order 22 are entirely distinct and different. The court always liberally considers the latter. Perumon Bhagvathy Devaswom, Perinadu Village VS Bhargavi Amma (Dead) By LRs - 2008 0 Supreme(SC) 1040Binod Pathak VS Shankar Choudhary - 2025 6 Supreme 181Bharvin Sureshbhai Patel VS Jigneshbhai Dahyabhai Patel - 2023 Supreme(Guj) 233
A post-abatement substitution prayer is often construed as implicitly including set-aside relief: A simple substitution prayer post-abatement is in substance... construed as a prayer for setting aside the abatement. Balwant Singh VS Jagdish Singh - 2010 0 Supreme(SC) 557
Composite handling is routine in appeals too: All the three applications relate to one matter namely, to bring the legal representatives... on record... the appellate court was competent... to go into the question as to whether there was a sufficient cause for the delay. SHARANAPPA VS HAFEEZUDDIN ANSARI - 1981 0 Supreme(Kar) 282
This approach prioritizes merits: Courts should adopt a liberal approach to substitution and abatement to prioritize substantial justice over procedural technicalities. Kalideen vs Mansaram - 2025 Supreme(All) 3283
Several rulings reinforce composite petitions:- In a land acquisition reference, applications under Order XXII Rules 3 & 9 with Section 5 condonation were liberally considered, quashing dismissal for delay and directing heirship verification while balancing equities by denying interest for the delay period. Parvathamma since Dead by LRs. VS Assistant Commissioner-Cum-Land Acquisition Officer, Tumkur Sub-Division - 2013 Supreme(Kar) 294- Courts have allowed bundled petitions for condonation, set-aside, and substitution: The petitions for condonation of delay and setting aside the abatement are allowed. Upon allowing the above petitions, the prayer for substitution of the legal heirs of the appellant also stands allowed. On the Death of Sakaldeo Sahani, His Legal Heirs Representing VS Ashok Kumar Sahani S/o Late Sakaldeo Mohan Sahani - 2019 Supreme(Gau) 1190- Another case set aside impugned orders: In view of the above discussion, the impugned orders are set aside. The petitions for condonation of delay, setting aside abatement and substitution are allowed. Hemendra Lal Baruah VS Lakshman Gupta - 2018 Supreme(Gau) 585- High Court rules permit one affidavit supporting multiple applications: Filing of one affidavit in support of the application for condonation of delay, application for setting aside abatement and substitution application was sufficient... Liberal view should be taken in condonation of delay for doing substantial justice. RAM KISHAN VS D. D. C. - 2013 Supreme(All) 1496
Even in appeals, composites are recognized, with orders appealable under Order XLIII Rule 1(k): an order refusing to condone the delay for setting aside the abatement is also within the whip of Order XLIII, Rule 1(k). Sachida Nand Yadav VS Dinesh Yadav - 1991 0 Supreme(Pat) 114
While generally maintainable, success hinges on:- Sufficient cause: Delay must be explained without negligence. It is settled law that... courts are more liberal with reference to applications for setting aside abatement, than other cases. But inordinate unexplained delay (e.g., 56 days without bona fides) leads to rejection. Deepak Aggarwal VS Gyan Chand Since Deceased Through Lrs - 2024 Supreme(Del) 154Bharvin Sureshbhai Patel VS Jigneshbhai Dahyabhai Patel - 2023 Supreme(Guj) 233- No gross negligence: Length of delay is irrelevant if bona fide; merits prevail. Ram Nath Sao @ Ram Nath Sahu VS Gobardhan Sao - 2002 2 Supreme 143Perumon Bhagvathy Devaswom, Perinadu Village VS Bhargavi Amma (Dead) By LRs - 2008 0 Supreme(SC) 1040- Proper sequence: Condonation applies to set-aside delay, not substitution post-150 days. Incorrect death dates or defective applications may fail. Kalideen vs Mansaram - 2025 Supreme(All) 3283- Within 150 days: Condonation is redundant but harmless. Baji Lal Mishra VS Bhagwati Sharan Mishra - 2001 0 Supreme(Pat) 993
Hyper-technical rejections are impermissible, but courts won't condone inaction. SHABIRA AMIN TAJWANI VS STATE OF GUJARAT - 2010 0 Supreme(Guj) 20
To maximize success:1. File a single composite application post-150 days, explicitly praying for substitution, set-aside abatement, and Section 5 condonation for the latter.2. Support with an affidavit detailing: knowledge of death, diligence, absence of negligence (e.g., no Order XXII Rule 10A notice), and reasons for delay.3. Emphasize liberal abatement principles and case merits.4. Produce heirship/death certificates.5. Appeal refusals under Order XLIII Rule 1(k); appellate courts re-appraise delay de novo.
One affidavit often suffices for all prayers. RAM KISHAN VS D. D. C. - 2013 Supreme(All) 1496
Composite petitions for setting aside abatement with condonation of delay are typically maintainable under CPC, embodying courts' commitment to substantial justice over procedural hurdles. Key takeaways:- Timeline: 90 + 60 = 150 days total; condonation only post-that for set-aside.- Liberal approach: Implicit reliefs bundled; focus on sufficient cause.- Appeal ready: Refusals appealable as abatement orders.
By following the proper sequence and explaining delays bona fide, litigants can revive abated suits. Always seek professional advice tailored to your facts.
References (select excerpts cited inline):- Om Prakash Gupta alias Lalloowa (Now Deceased) VS Satish Chandra (Now Deceased) - 2025 3 Supreme 79, Baji Lal Mishra VS Bhagwati Sharan Mishra - 2001 0 Supreme(Pat) 993, Balwant Singh VS Jagdish Singh - 2010 0 Supreme(SC) 557, Perumon Bhagvathy Devaswom, Perinadu Village VS Bhargavi Amma (Dead) By LRs - 2008 0 Supreme(SC) 1040, Binod Pathak VS Shankar Choudhary - 2025 6 Supreme 181, SHARANAPPA VS HAFEEZUDDIN ANSARI - 1981 0 Supreme(Kar) 282, Sachida Nand Yadav VS Dinesh Yadav - 1991 0 Supreme(Pat) 114, Bharvin Sureshbhai Patel VS Jigneshbhai Dahyabhai Patel - 2023 Supreme(Guj) 233, On the Death of Sakaldeo Sahani, His Legal Heirs Representing VS Ashok Kumar Sahani S/o Late Sakaldeo Mohan Sahani - 2019 Supreme(Gau) 1190, Parvathamma since Dead by LRs. VS Assistant Commissioner-Cum-Land Acquisition Officer, Tumkur Sub-Division - 2013 Supreme(Kar) 294, RAM KISHAN VS D. D. C. - 2013 Supreme(All) 1496, Deepak Aggarwal VS Gyan Chand Since Deceased Through Lrs - 2024 Supreme(Del) 154, Kalideen vs Mansaram - 2025 Supreme(All) 3283
#CPCAbatement #DelayCondonation #Order22CPC
permitting the defendant No. 2, to brought on record as heirs and legal representatives of the defendant No. 2, without submitting an application for setting aside the abatement and/or without submitting any application and/or prayed to condone the delay in preferring such an application would be maintainable ... That, the trial court ought to have rejected the application below exhibit 45 preferred by the responde....
any prayer for setting aside abatement qua the deceased defendant No. 2 and without filing separate application or praying any relief to condone the delay caused in preferring the application, Exh. 45. ... permitting the defendant No.2, to brought on record as heirs and legal representatives of the defendant No.2, without submitting an application for setting aside the abatement and/or without sub....
is made for setting aside the abatement, application for substitution cannot be allowed, is also misconceived. ... So also a prayer for setting aside abatement as regard one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. ... Not filing the separate application for setting as....
of the defendant, on 24.10.2013, earlier than the second week of March, 2014 and as such the application for condonation of delay does not disclose sufficient cause for condonation of delay of 56 days and is hereby, rejected, consequently the present application, moved U/o 22 Rule 4, CPC also fails ... petition is not maintainable. ... The application for condonation of delay bec....
It is settled law that the consideration for condonation of delay Under Section 5 of Limitation Act and setting aside of the abatement under Order 22 are entirely distinct and different. ... (ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. ... The courts tend to set aside a....
and, thus, such petition, if there has been any inkling therein regarding explanation of delay, could be considered as a petition for setting aside abatement. ... It is submitted that in that case, the Apex Court has held that the order rejecting an application on the ground that no prayer for setting aside abatement by preferring appeal and for condonation of delay#HL_....
of delay and setting aside the abatement of the appeal. ... Insofar as the absence of any prayer for condonation of delay is concerned, since the tenor of the applications before us seeks a substitution after setting aside abatement, the very prayer for substitution may be deemed to incorporate implicitly the prayer for condonation of the delay as well, since ... the substitution cannot be allowed....
It also noticed that there was no proper application for seeking condonation of delay and setting aside abatement. ... with an incorrect date of death as well as it was defective as it was not accompanied by an application seeking condonation of delay and setting aside abatement. ... The principles to guide courts while considering applications for set....
indicates that even then in the application for substitution, a composite prayer to set aside abatement is also required. ... It has also been submitted that an application for condonation of delay and seeking substitution would have inherent relief of setting aside abatement without any specific application being made particularly in terms of Articles 120 and 1....
On that application, the Court in addition to finding out as to whether the applicants are the Legal Representatives of the deceased shall also determine whether there are sufficient grounds to set aside the abatement. ... The above application was not maintainable in the absence of an application under O. 22, R. 9 of the C. P. C. for setting aside the abatement. Learned Civil Ju....
3 Leave granted. 4. Since issues of law and fact in this batch of appeals are identical, we propose to dispose of the same by this common judgment and order. 1. Permission to file special leave petition in SLP (c) Dy No. 47646/2024 is granted. 5. These appeals arise out of orders passed in eviction proceedings under the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971 [1971 Act]. All the appellants suffered findings that they were in unauthorized occupation of ‘forest land’. Eviction orders passed under Section 5 of the 1971 Act recording such findings toget....
Having heard the learned counsel for both the sides and having considered the causes of delay as stated in the petitions, I am of the view, that the delay deserves to be condoned inasmuch, the reasons shown by the petitioners can be construed as the sufficient grounds in the background of the facts and circumstances of the present case. Therefore, the petitions for condonation of delay and setting aside the abatement are allowed. Upon allowing the above petitions, the prayer for substitution of the legal heirs of the appellant also stands allowed.
In view of the above discussion, the impugned orders are set aside. The petitions for condonation of delay, setting aside abatement and substitution are allowed.
- for bringing the legal representatives of the claimant on record, for setting aside the abatement and for the condonation of delay in making the application for setting aside the abatement. 2. The petitioners have called into question, the order, dated 20.02.2013 (Annexure-F) passed by the Court of Senior Civil Judge and JMFC, Gubbi (Reference Court) in L.A.C. No. 255/2006, dismissing the petitioners' three LAs.
Necessary substitution be incorporated in the writ petition. The delay condonation application, application for setting aside abatement and substitution application are allowed. The delay in filing the substitution application as well as the application for setting aside abatement is condoned.
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