Gujarat High Court

Maheshkumar Kantilal Patel vs Vasantbhai Ugrabhai Patel on 1 September, 2025

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                             C/SCA/23419/2022                                ORDER DATED: 01/09/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 23419 of 2022

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                                              MAHESHKUMAR KANTILAL PATEL
                                                         Versus
                                            VASANTBHAI UGRABHAI PATEL & ORS.
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                      Appearance:
                      MS DIVYA RAVAL FOR MS TEJAL A VASHI(2704) for the Petitioner(s) No. 1
                      NOTICE SERVED for the Respondent(s) No.
                      11,12,13,14,2,3.1,3.2,3.3,3.4,3.5,5.1,5.2,5.3,5.4,7,8.1,8.2,9
                      SERVED BY RPAD (N) for the Respondent(s) No. 1,10
                      UNSERVED EXPIRED (N) for the Respondent(s) No. 4,6
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                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                      Date : 01/09/2025

                                                       ORAL ORDER

1. Heard learned advocate Ms.Divya Raval for learned

advocate Ms.Tejal A. Vashi for the petitioner. Though served,

none appears for respondents and respondent nos. 4 and 6

reported died.

2. The present writ application has been filed under Article

227 of the Constitution of India seeking following relief:-

"(a) This Honourable Court may be pleased to quash and set aside the impugned order dated 8.9.2022 below Exh. 105, passed by the Ld. 3rd Addl. Sr. Civil Judge, Mehsana in SCS no.37 of 2008;

(b) Pending the admission, hearing and final disposal of this petition, this Honourable Court may be pleased to stay the execution, operation and implementation of the impugned order dated 8.9.2022 below Exh.105, passed by the Ld. 3rd Addl. Sr. Civil Judge, Mehsana in SCS no.37 of 2008;

(a) Grant such other such other and further reliefs as may be

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deemed fit and proper in the interest of justice."

3. At the outset, learned advocate Ms.Raval would submit

that the petitioner herein is original defendant no.4 of Special

Civil Suit No.37 of 2008 filed by respondent no.1 herein and

rest of the respondents are defendants of the aforesaid suit.

She would submit that during the pendency of the aforesaid

suit, defendant no.3 died on 02.02.2022, which was made

known to the respondent no.1 - plaintiff but they failed to

bring his legal heirs on record within stipulated time. She

would further submit that impugned application came to be

filed below Exh.105 to bring legal heirs of deceased defendant

no.3 on 08.07.2022, whereby, there was a delay in filing such

application and so also, there is an abatement of the suit in

question but neither any separate application filed for setting

aside the abatement and so also seeking condonation of delay

to bring the legal heirs on record by original plaintiff.

3.1. Learned advocate Ms.Raval would further submit that

Trial Court has committed gross error of law inasmuch as

jurisdictional error by allowing impugned application, in

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absence of an application seeking condonation of delay and

setting aside the abatement of suit qua defendant no.3.

3.2. So, making the above submissions, learned advocate

Ms.Raval would request this Court to allow the present writ

application.

4. Having heard the learned advocate Ms.Raval and after

going through the impugned application and so also, the

impugned order passed thereon, it appears that defendant no.3

died on 02.02.2022, which was made known to plaintiff on

record on 12.05.2022. It further appears that the date of death

of defendant no.3 came on record as disclosed by his advocate

on 12.05.2022. It further appears that while disclosing such

fact, name and address of legal heirs of deceased defendant

no.3 was not made known on record.

5. Be that as it may, the plaintiff must have consumed

time to get such details and thereby, on getting such detail,

filed the impugned application.

6. Further, it is required to be observed that at the time of

death of defendant no.3, Covid-19 period was in existence and

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as per the decisions of Hon'ble Supreme Court, time to file all

legal proceeding were suspended, which was continued till 30 th

June, 2022.

7. Furthermore, as per the decision of the Hon'ble Supreme

Court in the case of Om Prakash Gupta Alias Lalloowa

(Now Deceased) vs Satish Chandra (Now Deceased)

reported in 2025 SCC Online SC 291 : (2025) INSC 183.,

wherein, it has been now well settled legal position of law

that once the court allows an application to bring the legal

heirs of the deceased party on record, it presumed to have

condoned the delay and so also, set aside the abatement as the

case may be.

8. For ready perusal, the relevant observations so made by

Hon'ble Supreme Court in Om Prakash Gupta (Supra), reads as

under:-

"9. The principles to guide courts while considering applications for setting aside abatement and application for condonation of delay in filing the former application are laid down by this Court in Perumon Bhagvathy Devaswom v. Bhargavi Amma. An instructive passage from such decision reads as follows:

"13. The principles applicable in considering applications for setting aside abatement may thus be summarised as follows:

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(i) The words 'sufficient cause for not making the application within the period of limitation' should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words 'sufficient cause' in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant.

(ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement.

(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation.

(iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case.

For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects. (v.) Want of 'diligence' or 'inaction' can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where 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."

(emphasis supplied in original)

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17. The second circumstance is whether the counsel for the deceased respondent or the legal representative of the deceased respondent notified the court about the death and whether the court gave notice of such death to the appellant. Rule 10-A of Order 22 casts a duty on the counsel for the respondent to inform the court about the death of such respondent whenever he comes to know about it. When the death is reported and recorded in the order-sheet/proceedings and the appellant is notified, the appellant has knowledge of the death and there is a duty on the part of the appellant to take steps to bring the legal representative of the deceased on record, in place of the deceased. The need for diligence commences from the date of such knowledge. If the appellant pleads ignorance even after the court notifies him about the death of the respondent that may be an indication of negligence or want of diligence.

18. The third circumstance is whether there is any material to contradict the claim of the appellant, if he categorically states that he was unaware of the death of the respondent. In the absence of any material, the court would accept his claim that he was not aware of the death.

19. Thus it can safely be concluded that if the following three conditions exist, the courts will usually condone the delay, and set aside the abatement (even though the period of delay is considerable and a valuable right might have accrued to the opposite party--LRs of the deceased--on account of the abatement):

(i) The respondent had died during the period when the appeal had been pending without any hearing dates being fixed;

(ii) Neither the counsel for the deceased respondent nor the legal representatives of the deceased respondent had reported the death of the respondent to the court and the court has not given notice of such death to the appellant;

(iii) The appellant avers that he was unaware of the death of the respondent and there is no material to doubt or contradict his claim.

(emphasis supplied)

23. We find it difficult to agree with such reasoning. When an application praying for substitution had been made, then, even assuming that it does not have an explicit prayer for setting aside the abatement, such prayer could be read as inherent in the prayer for substitution in the interest of justice. We draw inspiration for such a

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conclusion, having read the decision in Mithailal Dalsangar Singh v. Annabai Devram Kini, 2003 10 SCC 691. This Court reiterated the need for a justice-oriented approach in such matters. Inter alia, it was held that prayer to bring on record heir(s)/legal representative(s) can also be construed as a prayer for setting aside the abatement. The relevant passage reads as under:

"8. Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. 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. So also a prayer for setting aside abatement as regards one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. Once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for.

9. The courts have to adopt a justice-oriented approach dictated by the uppermost consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the court. The opinion of the trial Judge allowing a prayer for setting aside abatement and his finding on the question of availability of 'sufficient cause' within the

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meaning of sub-rule (2) of Rule 9 of Order 22 and of Section 5 of the Limitation Act, 1963 deserves to be given weight, and once arrived at would not normally be interfered with by superior jurisdiction.

10. In the present case, such an approach adopted by the Division Bench verges on too fine a technicality and results in injustice being done. There was no order in writing passed by the court dismissing the entire suit as having abated. The suit has been treated by the Division Bench to have abated in its entirety by operation of law. For a period of ninety days from the date of death of any party the suit remains in a state of suspended animation. And then it abates. The converse would also logically follow.

Once the prayer made by the legal representatives of the deceased plaintiff for setting aside the abatement as regards the deceased plaintiff was allowed, and the legal representatives of the deceased plaintiff came on record, the constitution of the suit was rendered good; it revived and the abatement of the suit would be deemed to have been set aside in its entirety even though there was no specific prayer made and no specific order of the court passed in that behalf."

(emphasis supplied)

9. Further, it is also required to be observed that as per

Order XXII Rule 10A of the Civil Procedure Code, 1908

(hereinafter referred to as "CPC"), it would be incumbent

upon the pleader of deceased party to inform the date of death

of his client and so also, to provide necessary information

about his / her legal heirs on record.

10. If there is a delay in disclosing such fact, no benefit can

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be found in favour of opposite party, which is culled out from

the ratio of the recent decisions of Hon'ble Supreme Court in

the case of Binod Pathak & Ors Versus Shankar Choudhary &

Ors, reported in 2025 SCC OnLine SC 1411, wherein it has

held thus:-

"58. In the case on hand, the respondents or the original defendants have pleaded for the abatement of the suit due to non- substitution of legal heirs therein by the plaintiff, within the statutorily prescribed period of time. Abatement of suit is not a right that accrues to a party when the other party has failed to substitute legal heirs within the specified period of limitation. Abatement may be disallowed by the court if it has sufficient cause for condoning the delay of the party that ought to have filed for the substitution of legal heirs. In fact, Rule 10A was enacted for the purpose to allow for mitigation of the legal effects of delay and can be used to request for condonation of delay.

59.The question of allowing abatement of suit is one of discretion and therefore, an advantage. Under Rule 10A of Order XXII, the duty of a pleader to apprise the court as well as the other parties to the suit or appeal of the death of his client is a duty of candour and propriety as a responsible officer of the court. The failure of a party to perform the duty under Rule 10A constitutes a wrongful act and such party must not be allowed to avail the benefit arising therefrom in the form of abatement of suit.

60. Rule 10A of Order XXII, as inserted by the Amendment Act, 1976 imposes an obligation on the pleader appearing for the party to intimate death of his client to the court. But there is difference of opinion as to whether the duty imposed on the pleader is confined to factum of death of a party or also to furnish names and particulars of legal representatives.

61. According to one view, there is no obligation on the pleader appearing on behalf of the deceased party to furnish or supply list of legal representatives of the deceased.

62. According to the other view, however, the pleader has not only to inform the court as to death of the party but he must also furnish particulars of legal representatives.

63. However, we are of the view that providing merely an

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information with regard to the fact of death is not sufficient compliance of the Rule 10A of the CPC. unless and until the counsel furnishes the information with regard to the details of the persons on whom and against whom the right to sue survives and the information under Rule 10A of the CPC. and the object behind it would remain incomplete as the parties would still be labouring to inquire who are the legal representatives and find out as to upon whom and against whom the right to sue survives.

64. This Court in Perumon Bhagvathy Devaswom Perinadu Village v. Bhargavi Amma (Dead) by Lrs., (2008) 8 SCC 321 has explained the principles applicable in considering applications for setting aside the abatement and as summarised such principles as under:--

"12. In State of M.P. v. S.S. Akolkar [(1996) 2 SCC 568] this Court held : (SCC pp. 569-70, paras 6-7) "6. [...] Under Order 22 Rule 10-A, it is the duty of the counsel, on coming to know of the death of a party, to inform it to the court and the court shall give notice to the other party of the death. By necessary implication delay for substitution of legal representatives begins to run from the date of knowledge. [...]

7. It is settled law that the consideration for condonation of delay under Section 5 of the Limitation Act and setting aside of the abatement under Order 22 are entirely distinct and different. The court always liberally considers the latter, though in some case, the court may refuse to condone the delay under Section 5 in filing the appeals. After the appeal has been filed and is pending, the Government is not expected to keep watch whether the contesting respondent is alive or has passed away. After the matter was brought to the notice of the counsel for the State, steps were taken even thereafter; after due verification belated application came to be filed. It is true that Section 5 of the Limitation Act would be applicable and delay is required to be explained. The delay in official business requires its broach and approach from public justice perspective."

(i) The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words "sufficient cause" in Section 5 of the

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Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant.

(ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement.

(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation.

(iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects.

(v) Want of "diligence" or "inaction" can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where 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."

(Emphasis supplied)

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65. The High Court in its impugned judgment and order has with a great air of conviction observed that Order XXII Rule 10A of the CPC is not mandatory and would not override the mandatory provisions relating to abatement as contained in Order XXII Rule 4 of the CPC. We are afraid, the understanding of the High Court is not correct.

66. The legislative intention of casting a burden on the advocate of a party to give intimation of the death of the party represented by him and for this limited purpose to introduce a deeming fiction of the contract being kept subsisting between the advocate and the deceased party was that the other party may not be taken unaware at the time of hearing of the appeal by springing surprise on it that the respondent is dead and appeal has abated. In order to avoid procedural justice scoring a march over substantial justice the Rule 10A was introduced by the Code of Civil Procedure (Amendment) Act of 1976 which came into force on February 1st, 1977. Unfortunately, the High Court took no notice of the wholesome provision and fell back on the earlier legal position which automatically stands modified by the new provision and reached an unsustainable conclusion.

71. This Court observed that although the arguments were attractive, yet one must keep in mind Order XXII Rule 10-A of the CPC This Court observed that it is obligatory on the pleader of the deceased to inform the court and the other side about the factum of the death of a party. This Court observed thus:--

"4. Though the arguments are attractive one must also keep in mind Order 22 Rule 10 of the Code of Civil Procedure. It is obligatory on the pleader of a deceased to inform the court and the other side about the factum of death of a party. In this case we find that no intimation was given to the court or to the other side that the first respondent had died. On the contrary a counsel appeared on behalf of the deceased person and argued the matter. It is clear that the attempt was to see whether a favourable order could be obtained. It is clear that the intention was that if the order went against them, then thereafter this would be made a ground for having that order set aside. This is in effect an attempt to take not just the other side but also the court for a ride. These sort of tactics must not be permitted to prevail. We, therefore, see no reason to interfere. The appeal stands dismissed. There will be no order as to costs."

(emphasis supplied)

11. Thus, in view of the aforesaid facts and the ratio of the

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aforesaid decisions, so applied to the facts of the present case,

I am of the view that no fault can be found with the Trial

Court when it exercised its positive discretion in favour of

original plaintiff - applicant of impugned application. So, there

is neither any gross error of law nor any jurisdictional error

committed by Trial Court while allowing the impugned

application, thereby, brought on record the legal heirs of