A litigant may receive one final opportunity to prove a Will-based substitution claim, subject to costs.

Late Shri Ram Swaroop Soni had instituted proceedings seeking setting aside of a compromise decree. During their pendency, he died on 12.10.2014. Respondent Nos. 1–4, claiming to be his children, sought substitution under Order XXII Rule 3 CPC. The petitioner separately sought substitution under Order XXII Rule 3 read with Section 151 CPC, claiming to be the deceased’s legal representative under a registered Will dated 11.04.2007.

An enquiry under Order XXII Rule 5 CPC was undertaken. The petitioner’s evidence was recorded, and the evidence of the Will’s draftsman was partly recorded. The petitioner also intended to examine an attesting witness to prove the Will.

On 06.05.2025, the Trial Court granted the petitioner a last opportunity to produce further evidence and fixed the matter for 08.05.2025. Neither the petitioner nor his counsel appeared on that date, and the petitioner’s right to lead further evidence was closed.

Thereafter, the Trial Court recorded the evidence of the rival claimants and, by order dated 06.08.2025, allowed respondents’ substitution application while rejecting the petitioner’s application on the ground that he had failed to produce the attesting witnesses to the Will.

Whether the Trial Court was justified in closing the petitioner’s right to lead further evidence when neither the petitioner nor his counsel appeared on the date fixed for the last opportunity?

Whether the petitioner should be granted a further opportunity to prove the registered Will and participate in the enquiry under Order XXII Rule 5 CPC despite the delay and earlier opportunities?

Whether the Trial Court’s order allowing the rival respondents’ substitution application and rejecting the petitioner’s application could stand independently after the closure of the petitioner’s evidence was set aside?

The Court exercised supervisory jurisdiction under Article 227 of the Constitution to examine the legality and fairness of the Trial Court’s orders.

Under Order XXII Rule 3 CPC, the legal representatives of a deceased party may seek substitution, while Order XXII Rule 5 CPC requires the court to determine, where disputed, the question of who is the legal representative for purposes of continuation of the proceeding. Section 151 CPC preserves the court’s inherent power to pass orders necessary in the interests of justice, and Order XVII Rule 1 CPC governs adjournments and opportunities to produce evidence.

The Court considered the principle that a litigant should not ordinarily suffer solely due to the default of counsel, as recognised in Rafiq v. Munshilal, AIR 1981 SC 1400, and Secretary, Department of Horticulture v. Raghu Raj, (2008) 13 SCC 395.

The Court also considered the contrary principle that repeated opportunities cannot be claimed as of right and that proceedings must be conducted diligently, including the earlier direction in M.P. No. 1100/2018 permitting an adverse inference for non-appearance.

The Court acknowledged that the petitioner had been granted several opportunities and that the proceedings had remained pending for a considerable period. It also noted that, on 08.05.2025, neither the petitioner nor his counsel appeared despite the matter having been fixed for a final opportunity.

Nevertheless, the Court found that the petitioner’s remaining evidence, particularly the evidence of the attesting witness to the Will, was material to the determination of the rival claims under Order XXII Rule 5 CPC.

Since the closure of evidence directly resulted in rejection of the petitioner’s substitution application, the two impugned orders were interdependent to that extent.

Balancing the petitioner’s procedural default against the need to decide the legal-representative issue on its merits, the Court exercised its supervisory and inherent jurisdiction to grant one final opportunity, but imposed substantial costs and strict conditions to prevent further delay.

The orders dated 08.05.2025 and 06.08.2025 were set aside to the extent that they closed the petitioner’s right to lead further evidence and disposed of the rival applications for substitution.

The petitioner was granted one final opportunity to complete and conclude his evidence, including examination of the attesting witness to the Will, subject to payment of costs of ₹15,000 each to respondent Nos. 1, 4, 5 and 6—totalling ₹60,000—within 15 days.

Upon proof of payment, the petitioner’s right to lead evidence would stand restored; failure to comply would revive the impugned orders and permit the Trial Court to proceed without granting any further opportunity.

Thereafter, the Trial Court was directed to conduct the enquiry under Order XXII Rule 5 CPC and decide the rival claims afresh in accordance with law, expeditiously and without unnecessary adjournments.