Unexplained delay in substituting known legal representatives warrants dismissal of an abated appeal.

The appellant, Geeta, widow of the deceased respondent’s pre-deceased son, challenged a decree dated 27 November 2015 in Civil Suit No. 176/2008, whereby Sompal Singh had obtained possession of one room occupied by her.

During the pendency of the Regular Second Appeal, Sompal Singh died on 4 May 2021, leaving behind his wife, son, daughter, and the children of his pre-deceased son.

The appellant admittedly knew of his death and the identity of his legal representatives, but did not file an application for substitution within the prescribed period of 90 days.

In November 2024, the appellant filed an application under Order XXII Rule 4 CPC for bringing the legal representatives on record, along with an application under Section 5 of the Limitation Act seeking condonation of a delay stated to be 1,279 days.

She relied principally on the Court’s order dated 22 January 2024, by which particulars of the legal representatives had been furnished, and contended that the deceased respondent’s counsel ought to have taken steps for substitution.

The deceased respondent’s legal representatives opposed the applications, asserting that the appeal had already abated and that no sufficient cause for the delay had been shown.

Whether the appellant had shown sufficient cause for condoning the delay in filing the application for substitution of the deceased respondent’s legal representatives.

Whether the abatement of the appeal against the deceased sole respondent could be set aside and his legal representatives brought on record in the absence of a specific application under Order XXII Rule 9(2) CPC.

Whether the appellant could avoid the consequences of abatement by contending that the deceased respondent’s counsel was responsible for bringing the legal representatives on record.

Order XXII Rule 4(3) CPC provides that where no application is made within the prescribed period to substitute the legal representatives of a deceased defendant or respondent, the proceeding abates against that party.

By virtue of Order XXII Rule 11 CPC, these provisions apply equally to appeals.

Order XXII Rule 9(2) CPC permits setting aside of abatement upon the applicant showing sufficient cause for not continuing the proceeding, while Rule 9(3) makes Section 5 of the Limitation Act applicable to such an application.

The applicable limitation period for seeking substitution was 90 days from the date of death.

A general assertion that delay was neither intentional nor deliberate, without explaining the circumstances preventing timely action or accounting for the delay period, does not constitute sufficient cause.

The Court found that the appeal had abated upon expiry of 90 days from Sompal Singh’s death because no substitution application had been filed within time.

The appellant had personal knowledge of both the death and the legal representatives, being the deceased’s daughter-in-law, having attended his last rites, and also participating in proceedings concerning his Will.

Her application did not explain what prevented her from acting within the prescribed period, nor did it account for the subsequent delay of approximately seven months after the Court’s order dated 22 January 2024, which expressly enabled her to take steps under Order XXII CPC.

The Court rejected the contention that responsibility lay with the deceased respondent’s counsel, holding that the appellant, as the party seeking continuation of the appeal, was required to seek substitution.

Although no separate application under Order XXII Rule 9(2) CPC had been filed, the Court considered the substance of the request and held that, in any event, no sufficient cause had been established for setting aside the abatement.

CM Applications Nos. 68287/2024 and 68288/2024, seeking substitution and condonation of delay, were dismissed.

Consequently, RSA 18/2018, having abated against the sole respondent, was also dismissed as abated.