Shiv Prasad vs Devnarayan and Ors.

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CGHC010015272014 2026:CGHC:44303
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MA No. 39 of 2014
Shiv Prasad S/o Hagar Aged About 71 Years R/o Village- Surra, P.S. Balrampur, Tah. Pal,
Civil And Revenue Distt. Balrampur-Ramanujganj C.G., Chhattisgarh
... Appellant
versus
1 - Devnarayan And Ors. S/o Hagar Aged About 65 Years R/o Village- Surra, P.S.
Balrampur, Tah. Pal, Civil Distt. Surguja And Revenue Distt. Balrampur-Ramanujganj C.G.,
Chhattisgarh
2 - Mulka S/o Daharu Aged About 68 Years R/o Village- Surra, P.S. Balrampur, Tah. Pal,
Civil Distt. Surguja And Revenue Distt. Balrampur-Ramanujganj C.G., District : Balrampur,
Chhattisgarh
3 - State Of Chhattisgarh S/o Thru- Collector, Balrampur-Ramanujganj, P.S. And Tah.
Balrampur-Ramanujganj, Civil Distt. Surguja, Revenue Distt. Balrampur-Ramanujganj C.G.,
District : Balrampur, Chhattisgarh
4 - Rampur S/o Hagar Aged About 71 Years R/o Village- Surra, P.S. Balrampur, Tah. Pal,
Civil Distt. Surguja And Revenue Distt. Balrampur-Ramanujganj C.G. Now Died, District :
Balrampur, Chhattisgarh
5 - Dasu S/o Dahru Aged About 80 Years R/o Village- Surra, P.S. Balrampur, Tah. Pal, Civil
Distt. Surguja And Revenue Distt. Balrampur-Ramanujganj C.G. Now Died, District :
Balrampur, Chhattisgarh
... Respondent(s)
For Appellant : Mr. Sandeep Patel, Advocate
For Respondent(s) : Mr. Shrikant Kaushik on behalf of Mr. Rishikant Mahobia,
Advocate
For Respondent NO. 3 : Mr. Deepak Singh, PL
(Hon’ble Shri Justice Sachin Singh Rajput)
Judgment on Board
13.10.2026

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1. The present appeal has been preferred under Order 43 Rule 1(k) of the Code
of Civil Procedure, 1908 (for short, “the CPC” ) assailing the legality and
correctness of the order dated 22.11.2013 passed by the Additional District
Judge, Balrampur, District Balrampur-Ramanujganj, place Ramanujganj,
Chhattisgarh (for short, “the learned first appellate Court” ) whereby Civil
Appeal No. 11-A/12 preferred by the appellant/plaintiff has been dismissed as
abated.
2. Learned counsel for the appellant/plaintiff submits that the appellant
instituted a suit seeking declaration of title, possession and permanent
injunction against the defendants namely Devnarayan, Mulka, Rampur, Dasu
and the State of Chhattisgarh. The said suit was dismissed by the Civil Judge,
Class-I, Ramanujganj, District Surguja vide judgment and decree dated
05.12.2008 passed in Civil Suit No. 2-A/2008. Aggrieved thereby, the
appellant preferred a first appeal registered as Civil Appeal No. 11-A/12
before the learned first appellate Court. He further submits that during the
pendency of the appeal, respondent Nos. 4 and 5 namely Rampur and Dasu
died, whereupon the appellant filed an application under Order 22 Rule 4 of
the CPC for bringing their legal representatives on record. The learned first
appellate Court rejected the application on the ground that respondent No.
5/Dasu had died in the year 2010 and in the absence of applications for setting
aside the abatement and condonation of delay, the appeal had abated against
the deceased respondents. Consequently, the appeal itself was dismissed as
abated. He submits that the learned first appellate Court ought to have afforded
an opportunity to the appellant to file appropriate applications under Order 22
Rule 9 of the CPC and Section 5 of the Limitation Act, 1963 instead of
dismissing the appeal without granting such opportunity. Reliance has been
placed upon the judgment of the Hon’ble Supreme Court in Om Prakash

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Gupta @ Lalloowa (Now Deceased) and Others v. Satish Chandra (Now
Deceased) reported in 2025 SCC OnLine SC 291.
3. Per contra, learned counsel appearing for the respondents opposes the
appeal and supports the impugned order passed by the learned first appellate
Court.
4. I have heard learned counsel for the parties and perused the material
available on record.
5. Perusal of the record reveals that the learned first appellate Court dismissed
the appeal as abated on account of the death of respondent Nos. 4 and 5
primarily on the ground that no application for setting aside the abatement and
condonation of delay had been filed. However, the application for substitution
of the legal representatives had already been filed by the appellant/plaintiff. In
this regard, the law laid down by the Hon’ble Supreme Court in Om Prakash
Gupta (Supra) in paragraph Nos. 22 & 23 observes thus:
“22. There is another equally important aspect, which merits our
The second appeal was restored by the High Court vide order
attention.
dated 25th May, 2018. This order, restoring the second appeal, was
recalled vide order dated 11th January 2019. The reason given was that,
in the absence of an application praying for setting aside the abatement,
the second appeal could not have been ordered to be restored.
23. We find it difficult to agree with such reasoning. When an
application praying for substitution had been made, then, even assuming
that it does not have an explicit prayer for setting aside the abatement,
such prayer could be read as inherent in the prayer for substitution in
the interest of justice. We draw inspiration for such a conclusion, having
read the decision in Mithailal Dalsangar Singh v. Annabai Devram Kini
reported in (2003) 10 SCC 691. This Court reiterated the need for a
justice-oriented approach in such matters. Inter alia, it was held that
prayer to bring on record heir(s)/legal representative(s) can also be
construed as a prayer for setting aside the abatement. The relevant
passage reads as under:

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“8. Inasmuch as the abatement results in denial of hearing on the
merits of the case, the provision of abatement has to be
construed strictly. On the other hand, the prayer for setting aside
an abatement and the dismissal consequent upon an abatement,
have to be considered liberally. A simple prayer for bringing the
legal representatives on record without specifically praying for
setting aside of an abatement may in substance be construed as a
prayer for setting aside the abatement. So also a prayer for
setting aside abatement as regards one of the plaintiffs can be
construed as a prayer for setting aside the abatement of the suit
in its entirety. Abatement of suit for failure to move an
application for bringing the legal representatives on record
within the prescribed period of limitation is automatic and a
specific order dismissing the suit as abated is not called (2003)
10 SCC 691 for. Once the suit has abated as a matter of law,
though there may not have been passed on record a specific
order dismissing the suit as abated, yet the legal representatives
proposing to be brought on record or any other applicant
proposing to bring the legal representatives of the deceased party
on record would seek the setting aside of an abatement. A prayer
for bringing the legal representatives on record, if allowed,
would have the effect of setting aside the abatement as the relief
of setting aside abatement though not asked for in so many
words is in effect being actually asked for and is necessarily
implied. Too technical or pedantic an approach in such cases is
not called for.
9. The courts have to adopt a justice-oriented approach dictated
by the uppermost consideration that ordinarily a litigant ought
not to be denied an opportunity of having a lis determined on
merits unless he has, by gross negligence, deliberate inaction or
something akin to misconduct, disentitled himself from seeking
the indulgence of the court. The opinion of the trial Judge
allowing a prayer for setting aside abatement and his finding on
the question of availability of ‘sufficient cause’ within the
meaning of sub-rule (2) of Rule 9 of Order 22 and of Section 5
of the Limitation Act, 1963 deserves to be given weight, and
once arrived at would not normally be interfered with by
superior jurisdiction.
10. In the present case, … such an approach adopted by the
Division Bench verges on too fine a technicality and results in
injustice being done. There was no order in writing passed by
the court dismissing the entire suit as having abated. The suit has
been treated by the Division Bench to have abated in its entirety
by operation of law. For a period of ninety days from the date of
death of any party the suit remains in a state of suspended
animation. And then it abates. The converse would also logically
follow. Once the prayer made by the legal representatives of the
deceased plaintiff for setting aside the abatement as regards the
deceased plaintiff was allowed, and the legal representatives of
the deceased plaintiff came on record, the constitution of the suit

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was rendered good; it revived and the abatement of the suit
would be deemed to have been set aside in its entirety even
though there was no specific prayer made and no specific order
of the court passed in that behalf.”
(emphasis supplied)
6. In view of the aforesaid legal position, this Court is of the considered
opinion that the learned first appellate Court is now required to consider the
application for substitution in the light of the principles laid down by the
Hon’ble Supreme Court in Om Prakash Gupta ( supra ) rather than dismissing
the appeal as abated without examining the matter from that perspective.
Accordingly, the impugned order dated 22.11.2013 is set aside. Civil Appeal
No. 11-A/12 is restored to its original number and the matter is remitted to the
learned first appellate Court to consider the application for substitution in
accordance with law including the question of setting aside the abatement and
condonation of delay after affording due opportunity of hearing to the parties.
Liberty is also reserved in favour of the appellant to move appropriate
applications for setting aside abatement and condonation of delay. The parties
are directed to appear before the learned first appellate Court on 16.12.2026 . A
copy of this order shall be communicated to the learned first appellate Court
forthwith.
7. Accordingly, the appeal is allowed . No order as to costs.
Sd/-
(Sachin Singh Rajput)
JUDGE
H. Ansari
Digitally signed
by
HIFZURRAHMAN
ANSARI
Date: 2026.10.16
17:23:33 +0530
HIFZURRAHMAN
ANSARI