The Bombay High Court has reaffirmed that the death of a writ petitioner does not automatically extinguish the right to pursue judicial remedy, provided legal heirs act promptly upon learning of the pendency of litigation. In a significant ruling, the Court condoned a delay of over 17 years in substituting legal heirs and set aside the abatement of a writ petition filed in 2003, emphasizing that substantial justice must prevail over technicalities.
Background & Facts
The Dispute
The writ petition, filed on 02.05.2003 by Jaywant Haribhau Kothare and Madhav Haribhau Kothare, challenged an order dated 28.03.2003 passed by the Secretary and Officer on Special Duty (Appeals) in Revision Application No. RTS/2601/P.K338/L.6/P.K399(12), which upheld a lower authority’s decision regarding revenue rights over immovable property. The dispute originated from a long-standing title conflict involving land in Mumbai Suburban District, initially litigated in the Small Causes Court, which was finally disposed of in 2019.
Key Facts
- The original petitioners, Jaywant Haribhau Kothare (Petitioner No.1) and Madhav Haribhau Kothare (Petitioner No.2), were co-applicants challenging the denial of their claim to revenue records.
- Petitioner No.1 died on 07.12.2006. His legal heirs were not informed of the pending writ petition.
- Petitioner No.2 continued to prosecute the petition alone after 2006 but did not apply to substitute the legal heirs of Petitioner No.1.
- Petitioner No.2 died on 23.09.2024.
- The writ petition was admitted by this Court on 11.12.2003 but remained unlisted for final hearing for over two decades.
- On 12.12.2024, the petition was placed for final hearing. The erstwhile advocate informed the legal heirs of both petitioners, who were unaware of the litigation.
- Interim Applications Nos. 1332 of 2025 and 1333 of 2025 were filed on 17.01.2025 seeking substitution of legal heirs, with delays of 6525 days and 25 days respectively.
- The legal heirs claimed they had no knowledge of the litigation due to the deceased petitioners’ failure to inform them.
Procedural History
- 02.05.2003: Writ Petition No. 8897 of 2003 filed before the Bombay High Court.
- 11.12.2003: Writ petition admitted by the Court.
- 07.12.2006: Death of Petitioner No.1 (Jaywant Haribhau Kothare).
- 23.09.2024: Death of Petitioner No.2 (Madhav Haribhau Kothare).
- 09.12.2024: Erstwhile advocate informed legal heirs of impending listing.
- 12.12.2024: Petition placed for final hearing; advocates moved for substitution.
- 17.01.2025: Interim Applications filed seeking substitution of legal heirs and condonation of delay.
- 08.06.2026: Judgment delivered by Justice Milind N. Jadav.
The Parties' Positions
The Applicants (legal heirs of the deceased petitioners) contended they were entirely unaware of the litigation and acted immediately upon learning of it. They relied on Supreme Court precedents to argue that the right to sue survives death and substitution must be allowed if delay is explained without mala fides.
The Respondents opposed substitution, arguing that the delay of over 17 years was inexcusable, that Petitioner No.2 failed to act after 2006, and that the petition had abated under Order XXII of the CPC. They cited Balwant Singh v. Jagdish Singh to assert that abatement is automatic and cannot be reversed after such prolonged inaction.
Relief Sought
The Applicants sought:
- Condonation of delay in filing substitution applications.
- Setting aside of abatement of Writ Petition No. 8897 of 2003.
- Substitution of legal heirs as petitioners in the writ petition.
- Permission to amend the petition to reflect the new parties.
The Legal Issue
Can the legal heirs of deceased writ petitioners be substituted after a delay of over 17 years, and does such delay automatically abate the writ petition under Order XXII of the CPC, or can the Court condone the delay in the interest of substantial justice?
Arguments Presented
For the Appellant/Petitioner
The Applicants relied on Puran Singh v. State of Punjab, Perumon Bhagyavathy Devaswom v. Bhargavi Amma, and Mithailal Dalsangar Singh v. Annabai Devram Singh Kini to argue that:
- The right to sue survives the death of a petitioner in a writ petition.
- Order XXII of the CPC, though not strictly applicable to writ proceedings, provides guiding principles.
- Delay must be judged not by its length but by the sufficiency of explanation.
- The petitioners’ heirs were not negligent; they were unaware of the litigation due to the deceased’s failure to inform them.
- Courts must adopt a liberal approach to setting aside abatement to prevent denial of hearing on merits.
- The petition remained in cold storage for over 20 years, and petitioners had no obligation to monitor its status.
For the Respondent/State
The Respondents contended that:
- Order XXII Rules 2 and 3 mandate substitution within 150 days of death; failure to do so results in automatic abatement.
- Petitioner No.2, after 2006, had a duty to substitute the heirs of Petitioner No.1 but failed to do so.
- The 6525-day delay is unexplained and reflects deliberate inaction.
- The respondents have acquired valuable rights over the property over 17 years, and reopening the matter would prejudice them.
- The decision in Balwant Singh v. Jagdish Singh supports strict application of abatement rules.
The Court's Analysis
The Court undertook a comprehensive review of Order XXII of the CPC and its applicability to writ proceedings. It held that while Order XXII does not strictly govern writ petitions, its principles are binding in spirit to ensure justice. The Court emphasized that abatement is not automatic in the sense of extinguishing rights; rather, it is a procedural default that the Court may set aside if sufficient cause is shown.
"Even if an application is filed beyond 90 days of the death of such respondent, the Court can take into consideration the facts and circumstances of a particular case for purpose of condoning the delay in filing the application for substitution of the legal representative."
The Court noted that the petition had been admitted in 2003 and remained unlisted for over two decades. During this period, the petitioners had no duty to inquire about the status of the petition or the survival of the opposite party. The Court observed:
"When an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal."
The Court further held that the failure of Petitioner No.2 to substitute Petitioner No.1’s heirs after 2006 did not constitute negligence by the legal heirs, who were unaware of the litigation. The Court distinguished between negligence by the litigant and negligence by the advocate, and found no evidence of mala fides or dilatory tactics.
The Court also relied on Mithailal Dalsangar Singh, holding that a prayer for substitution inherently includes a prayer to set aside abatement, and courts must not adopt a pedantic approach. The Court concluded that the Applicants had demonstrated sufficient cause under Section 5 of the Limitation Act, and the delay was neither intentional nor prejudicial to the respondents.
The Verdict
The Applicants succeeded. The Court allowed Interim Applications Nos. 1332 of 2025 and 1333 of 2025, condoned the delay of 6525 days and 25 days respectively, set aside the abatement of Writ Petition No. 8897 of 2003, and directed the substitution of legal heirs as petitioners. The Advocate for Applicants was permitted to amend the petition within two weeks and serve the amended petition on Respondents within two weeks thereafter. The Registry was directed to list the petition for final hearing before the roster court after amendment. The request for stay of the order was rejected.
What This Means For Similar Cases
Substitution After Long Delays Is Permissible
- Practitioners may now argue that delay in substitution of legal heirs in writ petitions is not fatal if the heirs were genuinely unaware of the litigation.
- Courts must evaluate the explanation for delay, not merely its duration.
- The burden shifts to the respondent to prove mala fides or prejudice from delay.
Writ Petitions in Cold Storage Do Not Impose Monitoring Obligations
- Litigants are not required to periodically check the status of admitted writ petitions that remain unlisted for years.
- The duty to inform the Court of a party’s death lies primarily with the advocate, not the legal heirs.
- Failure by an advocate to notify heirs does not constitute negligence by the heirs.
Abatement Is Not Automatic Without Judicial Confirmation
- A writ petition does not stand abated merely due to lapse of time; abatement must be formally declared by the Court.
- A simple prayer for substitution is sufficient to invoke the Court’s power to set aside abatement.
- Courts must prioritize hearing on merits over procedural technicalities, especially in long-pending matters.
