Jharkhand High Court

Bhola Rana vs Tarkeshwar Sharma on 21 July, 2025

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

                                                      [2025:JHHC:19935]



       IN     THE HIGH COURT OF JHARKHAND AT RANCHI
                             C.M.P. No. 390 of 2024
       Bhola Rana, Aged about 67 years, s/o Late Pritam
       Mistri, R/o Village Mandai Khurd, P.S. Lohsinghna,
       P.O. & Dist. - Hazaribag.
                                                            .....   ...      Petitioner
                               Versus
       Tarkeshwar Sharma, S/o Late Khemlala Mistri, R/o
       Soni Playwood, Cinema Hall Road, P. O., P. S. &
       Dist. Sundargarh, Odisha.
                                                    .....   ...       Opposite Party
                               --------

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner : Mr. Ajay Kumar Singh, Advocate.

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08/ 21.07.2025 Notice upon the sole opposite party has already been validly

served, however, the sole opposite party has chosen not to appear in the

matter, in view of that this petition is being heard in absence of sole

opposite party.

2. Heard Mr. Ajay Kumar Singh, learned counsel appearing

for the petitioner.

3. This petition has been filed under Article 227 of the

Constitution of India, wherein prayer has been made for setting aside

the order dated 30.01.2024, passed in Title Suit No. 204 of 2018 by the

learned Civil Judge (Sr. Div)-II-cum-Special Judge, L.A. Cases,

Hazaribag, whereby, the petition dated 20.07.2023 filed by the plaintiffs

under Order-XXII Rules 2 and 3 read with Section 151 of the CPC

along with Section 5 of the Limitation Act for substitution of the legal

heirs of plaintiff No. 1 has been dismissed by the learned court.

4. Mr. Ajay Kumar Singh, learned counsel appearing for the

petitioner submits that the Title Suit No. 204 of 2018 was instituted on

12.10.2018 and the said suit was admitted and notices were directed to

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be issued on 25.09.2019 and the suit was further placed on 24.02.2020.

He submits that plaintiff Nos. 1 to 3 are owners of the land measuring

an area of 0.40 acres out of 0.80 acres in the Plot No. 348 under Khata

No. 31 at village Masipiri, Dist. Hazaribagh. He further submits that on

24.06.2013, the defendant Nos. 3 and 4 constructed boundary wall over

the aforesaid land, then the plaintiffs came to know that the defendant

Nos. 3 and 4 have purchased the said land from the defendant No. 2 and

thereafter the suit was instituted.

5. Learned counsel submits that the defendants have appeared

before the learned court on 04.08.2022. He submits that during the

pendency of the suit, the plaintiff No. 1 left for his heavenly abode on

02.04.2019, but due to inadvertence of the remaining plaintiffs and also

due to closure of courts for more than two years due to advent of

Covid-19 infection, the fact of death of plaintiff No. 1 could not be

brought on record by the remaining plaintiffs. He further submits that

on 30.05.2023, defendant No. 2 filed an information that plaintiff No.1

has died long ago before the learned court and thereafter on 20.07.2023,

the plaintiff herein has filed a petition under Order-XXII Rules 2 and 3

of the CPC for substituting the names of legal heirs and successor of

plaintiff No. 1 along with a petition under Section 5 of the Limitation

Act for condoning the delay and also for setting aside the abatement.

He submits that the learned court has not considered this aspect of the

matter that for about two years, the Covid-19 pandemic was there and

inadvertently that has occurred and the learned court only on the ground

of delay, the said petition for substitution has been rejected. On these

grounds, he submits that the impugned order may kindly be set aside.

6. It is an admitted position that plaintiff No. 1 left for his

heavenly abode on 02.04.2019. Defendant No. 2 filed an informatory

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petition on 30.05.2023 about the death of plaintiff No. 1. A petition for

substitution under Order-XXII Rules 2 and 3 of the CPC along with a

petition under Section 5 of the Limitation Act for condoning the delay

and also for setting aside the abatement has been filed on 20.07.2023.

The said petition has been annexed with the present CMP along with

the limitation petition, wherein prayer for condoning the delay and to

set aside the abatement, a separate petition has been filed and the

ground of Covid-19 is also taken in that petition. From that petition, it

transpires that the ground has been taken of Covid-19 and it is well

settled that in the suo motu judgment of Hon'ble Supreme Court in the

case of Cognizance For Extension of Limitation IN RE, reported in

(2022) 3 SCC 117, the Hon'ble Supreme Court in paras-5.1 to 5.3, it

held as under:-

"5.1. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings. 5.2. Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022. 5.3. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the

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event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply."

7. In view of the above order of the Hon'ble Supreme Court,

the said period has been excluded for the purpose of limitation, as

prescribed under the general or special laws in respect of all judicial or

quasi-judicial proceedings. Thus, in light of Covid-19 pandemic and in

view of the above judgment of Hon'ble Supreme Court, the learned

court was required to consider this aspect of the matter for substitution

and condoning the delay and also setting aside the abatement and

allowing the substitution petition. The learned court only on the ground

of delay, has been pleased to reject the same.

8. Recently the Hon'ble Supreme Court, has ceased with the

matter in a case wherein, substitution petition was one of the aspect and

reference in this context may be made to the case of Om Prakash

Gupta @ Lalloowa (Now Deceased) & Ors. Versus Satish Chandra

(Now Deceased), reported in 2025 SCC OnLine SC 291, wherein the

Hon'ble Supreme Court in paras-13 to 20 has held as under:-

"13. Having regard to the facts noticed above, this appeal would require us to decide whether the heirs of Om Prakash were required to file a separate application for substitution when, admittedly, an application for substitution (Civil Misc. Substitution Application No. 211 of 1997) had previously been filed by the heirs of Satish Chandra. If the answer is in the negative, the impugned orders and also the order dated 2nd January 2007 (vide which the second appeal was dismissed as abated) will have to be set aside, since dismissal of a second appeal as abated despite

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pendency of a valid substitution application would be bad in law.

14. Order XXII of the Code of Civil Procedure is titled DEATH, MARRIAGE AND INSOLVENCY OF PARTIES. Rule 4 thereof lays down the procedure in case of death of one of several defendants or of sole defendant. It is clear on perusal of such rule that it does not expressly provide who between the parties to a civil suit is to present an application for substitution.

15. In Union of India v. Ram Charan, this Court held:

"10. It is not necessary to consider whether the High Court applied its earlier Full Bench decision correctly or not when we are to decide the main question urged in this appeal and that being the first contention. Rules 3 and 4 of Order 22 CPC lay down respectively the procedure to be followed in case of death of one of several plaintiffs when the right to sue does not survive to the surviving plaintiffs alone or that of the sole plaintiff when the right to sue survives or of the death of one several defendants or of sole defendant in similar circumstances. The procedure requires an application for the making of the legal representatives of the deceased plaintiff or defendant a party to the suit. It does not say who is to present the application. Ordinarily it would be the plaintiff as by the abatement of the suit the defendant stand to gain. However, an application is necessary to be made for the purpose. If no such application is made within the time allowed by law, the suit abates so far as the deceased plaintiff is

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concerned or as against the deceased defendant. The effect of such an abatement on the suit of the surviving plaintiffs or the suit against the surviving defendants depends on other considerations as held by this Court in State of Punjab v. Nathu Ram [AIR 1962 SCR 89] and Jhandha Singh v. Gurmukh Singh [CA No. 344 of 1956 decided on April 10, 1962]. Anyway, that question does not arise in this case as the sole respondent had died."

(emphasis supplied)

16. The law, laid down in Ram Charan (supra), is clear. There seems to be no legal requirement that on the death of a defendant, an application for substitution in all cases has to be made by the plaintiff only and that, any application, made by the heir(s)/legal representative(s) of the deceased defendant seeking an order to allow him/them step into the shoes of the deceased defendant and to contest the suit, cannot be considered. Once an application has been made by either party and the court has been informed about the death of a party and who the heir(s)/legal representative(s) he has left behind, the only thing that remains for the court is to pass an order substituting the heir(s)/legal representative(s). Such being the case, we have no doubt in holding that the application moved by the heirs of Satish Chandra (Civil Misc. Substitution Application No. 211 of 1997), whereby the court was informed by them of his death and the heirs that he had left behind, amounted to an application for substitution which was legally permissible and valid

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and deserved consideration.

17. According to Mr. Basant, the application filed by the heirs of Satish Chandra was an application intimating the death of Satish Chandra under Order XXII Rule 10-A, CPC and it was not an application under Rule 4 thereof; thus, there being no valid and proper application for substitution, the appeal was rightly held to have abated.

18. We find no force in the argument advanced by Mr. Basant. The application filed by the heirs of Satish Chandra was registered as a substitution application and the prayer was also for deletion of the name of Satish Chandra and substitution of his three sons in his place. In view thereof and having regard to the law laid down in Ram Charan (supra), we hold that an application having been filed by the heirs of Satish Chandra, the heirs of Om Prakash were not legally obliged to apply separately for substitution.

19. In our opinion, the law not having expressly mandated that an application for substitution has to be filed by the plaintiff/appellant upon receiving intimation of death, requiring a formal application from the plaintiff only will serve no tangible purpose. A justice-oriented approach has to be followed in interpreting the provisions of the CPC is the well settled law. Reference may usefully be made to the decision in Chinnammal v. P. Arumugham, where it was held:

"17. It is well to remember that the Code of Civil Procedure is a body of procedural law designed to facilitate justice and it should

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not be treated as an enactment providing for punishments and penalties. The laws of procedure should be so construed as to render justice wherever reasonably possible. It is in our opinion, not unreasonable to demand restitution from a person who has purchased the property in court auction being aware of the pending appeal against the decree."

(emphasis supplied)

20. The High Court having been duly informed of the death of Satish Chandra, and substitution having been prayed by the heirs of the deceased, it ought to have proceeded to consider such application and pass an order bringing the heirs of the deceased respondent on record. This, the High Court omitted to order, perhaps, due to inadvertence whereby pendency of the application for substitution filed by the heirs of Satish Chandra escaped its notice."

9. In the case in hand, the informatory petition on behalf of the

defendant has already been filed before the learned court on 30.05.2023

and in view of the above judgment of the Hon'ble Supreme Court, the

court further finds that the learned court was ought to consider the same

petition in view of the fact that the information to that effect by one of

the party has already been filed for the death of the plaintiff No. 1 and

the court is required to take the justice oriented approach in interpreting

the provisions of the CPC, as the CPC is the procedural law, which is

not meant for providing punishment and penalties.

10. In view of the above facts, reasons and analysis, order dated

30.01.2024, passed in Title Suit No. 204 of 2018 by the learned Civil

Judge (Sr. Div)-II-cum-Special Judge, L.A. Cases, Hazaribag, whereby,