A landmark ruling by the Madhya Pradesh High Court has clarified that a prayer for substitution of legal representatives in a deceased party’s place, even without explicit wording, constitutes an implicit request to set aside abatement. This decision reinforces the judiciary’s commitment to substantive justice over technical procedural failures, ensuring litigants are not deprived of their right to a hearing on merits due to counsel’s oversight.
Background & Facts
The Dispute
The first appeal, filed in 2014, involved a property dispute between the parties. During the pendency of the appeal, the sole respondent passed away. The legal representatives of the deceased respondent were not intimated by the respondent’s counsel, leading to the appeal being dismissed as abated under Order 22 Rule 4 CPC.
Procedural History
The procedural journey unfolded as follows:
- 2014: First Appeal No. 364/2014 filed before the First Appellate Court
- 2023: Sole respondent died; legal representatives not informed by respondent’s counsel
- 2024: Appeal dismissed as abated due to non-substitution of legal representatives
- 2024: Application for restoration filed and dismissed as withdrawn
- 2025: Present application filed seeking recall of abatement order and condonation of delay
Relief Sought
The petitioner sought setting aside of the abatement under Order 22 Rule 9 of the Code of Civil Procedure, along with condonation of delay, arguing that the failure to notify legal representatives was due to counsel’s negligence, not the litigant’s fault.
The Legal Issue
The central question was whether a prayer for substitution of legal representatives under Order 22 Rule 9 CPC, even without an explicit request to set aside abatement, can be construed as an implied application to revive the appeal in the interest of justice.
Arguments Presented
For the Petitioner
The petitioner’s counsel relied on the Supreme Court’s decision in Om Prakash Gupta v. Satish Chandra to argue that a prayer for substitution inherently includes a request to set aside abatement. It was contended that the delay was bona fide, arising from the counsel’s failure to communicate the death to the legal representatives, and that punishing the litigant for such error would violate the principle of substantive justice.
For the Respondent
The respondents argued that the application was not maintainable as it was not filed strictly under Order 22 Rule 9 CPC and that the earlier restoration application had been withdrawn, rendering the present application procedurally defective. They contended that technical compliance with procedural rules must be strictly adhered to.
The Court's Analysis
The Court examined the nature of abatement under Order 22 Rule 4 CPC and the remedial purpose of Order 22 Rule 9 CPC. It emphasized that abatement is a procedural consequence, not a substantive bar to adjudication. The Court held that the Supreme Court’s ruling in Om Prakash Gupta v. Satish Chandra provides the governing principle:
"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 the notion that procedural technicalities should override the right to a fair hearing. It noted that the trial court had previously allowed substitution, and the dismissal of the earlier restoration application as "withdrawn" did not constitute a final adjudication on merits. The Court further observed that the delay was neither deliberate nor malicious, and the litigant had acted promptly upon learning of the abatement.
The Court concluded that the spirit of Order 22 Rule 9 CPC is to ensure that litigation is not terminated due to inadvertent lapses, especially when the deceased party’s rights are not extinguished but merely require representation. The principle that "the mistake of the counsel should not be visited upon the client" was central to the reasoning.
The Verdict
The petitioner succeeded. The Court held that a prayer for substitution under Order 22 Rule 9 CPC inherently seeks to set aside abatement, even if not expressly stated. The abatement was set aside, the first appeal was restored, and a cost of ₹3,000 was imposed on the petitioner.
What This Means For Similar Cases
Prayer for Substitution Implies Setting Aside Abatement
- Practitioners no longer need to draft separate prayers for setting aside abatement when filing for substitution
- Courts must interpret applications under Order 22 Rule 9 CPC liberally, not technically
- A failure to include the phrase "setting aside abatement" will no longer be fatal to the application
Counsel’s Negligence Does Not Bar Relief
- Litigants are protected from the consequences of their counsel’s procedural lapses
- Courts must assess whether the delay was bona fide and whether the litigant acted promptly upon discovery
- This principle applies equally to suits and appeals under Order 22
Restoration Is Not a Second Chance - It Is a Right
- Dismissal of a prior application as "withdrawn" does not preclude a fresh application if the underlying cause remains unaddressed
- The doctrine of res judicata does not apply to procedural applications under Order 22 Rule 9
- Courts must prioritize adjudication on merits over procedural formalities
