A landmark ruling by the Madhya Pradesh High Court has clarified that a mere prayer to substitute legal representatives after a party’s death suffices to set aside abatement under Order 22 Rule 9 CPC, even without an explicit request to revive the suit. This decision reinforces the judiciary’s commitment to adjudicating disputes on merits rather than dismissing them on technical grounds.
Background & Facts
The Dispute
The civil second appeal, originally filed in 1995, involved a property dispute between the families of Santosh Hazari and Purshottam Tiwari. Both the sole appellant and respondent no.1 died during the pendency of the appeal. Their legal representatives (LRs) were not substituted within the statutory period, leading to the automatic abatement of the appeal under Order 22 Rule 4 CPC.
Procedural History
- 1995: Second appeal filed before the High Court
- 2017: Death of sole appellant and respondent no.1
- 2020: Appeal dismissed in default for non-prosecution
- 2021: Appeal restored on application
- 2025: LRs of both parties failed to file substitution applications within six months of restoration
- 2026: Second appeal dismissed as abated
- 2026: New counsel filed application seeking setting aside of abatement and substitution of LRs
Relief Sought
The legal representatives of the deceased appellant sought to set aside the abatement and restore the second appeal to enable adjudication on merits. They argued that the failure to file substitution was due to the previous counsel’s lack of instructions, not gross negligence or misconduct.
The Legal Issue
The central question was whether a prayer for substitution of legal representatives under Order 22 Rule 9 CPC, without an explicit request to set aside abatement, can be construed as an implied application to revive the suit.
Arguments Presented
For the Petitioner
The newly engaged counsel contended that the failure to file substitution was due to the previous counsel’s non-appearance and claim of no instructions, not deliberate neglect. Relying on Om Prakash Gupta v. Satish Chandra, they argued that the Supreme Court has held that a prayer for substitution inherently includes a prayer to set aside abatement. They emphasized that the cause of action survives with the LRs and denying restoration would violate the principle of access to justice.
For the Respondent
The respondents did not oppose the application. The court noted the absence of any contest or allegation of mala fide or gross negligence on the part of the petitioner’s LRs.
The Court's Analysis
The Court examined the Supreme Court’s ruling in Om Prakash Gupta v. Satish Chandra and found it directly applicable. The apex court had held that abatement provisions must be construed strictly, but applications to set aside abatement must be interpreted liberally in the interest of justice. The Court quoted the key passage:
"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."
The Court rejected a pedantic interpretation that would require separate prayers for substitution and setting aside abatement. It emphasized that the suit remains in a state of suspended animation for 90 days after death, and abatement is automatic by law - not requiring a formal dismissal order. Once substitution is granted, the suit revives ipso facto. The Court noted that the trial court’s discretion to allow setting aside abatement, based on sufficient cause under Section 5 of the Limitation Act, deserves deference. The failure of prior counsel to act, without evidence of deliberate inaction by the LRs, did not disentitle them from relief.
The Verdict
The petitioner succeeded. The Court held that a prayer for substitution of legal representatives under Order 22 Rule 9 CPC, even without an explicit prayer to set aside abatement, is sufficient to revive the suit. The second appeal was restored, subject to filing substitution applications within seven days and payment of Rs. 500 as costs.
What This Means For Similar Cases
Substitution Implies Revival
- Practitioners no longer need to file separate applications for substitution and setting aside abatement
- A single application under Order 22 Rule 9 suffices to seek both reliefs
- Courts must treat substitution as inherently linked to setting aside abatement
Burden of Proof Shifts to Opposing Party
- The onus is now on the respondent to prove gross negligence, deliberate delay, or misconduct by the LRs
- Mere lapse of time or procedural lapse by counsel does not automatically disentitle LRs
- Courts must assess whether the delay was due to inadvertence or systemic failure
Judicial Discretion Favors Merits
- Trial courts’ findings on sufficient cause under Section 5 of the Limitation Act are entitled to weight
- Higher courts must avoid technical dismissals that deny hearing on merits
- This ruling aligns with Article 21’s guarantee of access to justice and the principle of audi alteram partem
