Patna High Court
Chandan Paswan vs Shakuntala Devi on 10 April, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1166 of 2023
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1. Chandan Paswan Son of Late English Paswan, resident of Mohalla -
Salimpur Ahra, Gali No. 1, P.S. Gandhi Maidan, District - Patna.
2. Sunil Paswan, Son of Late English Paswan, resident of Mohall - Salimpur
Ahra, Gali No. 1, P.S. Gandhi Maidan, District - Patna.
... ... Petitioner/s
Versus
1. Shakuntala Devi wife of Siya Sharan Singh, Resident of Machhariawan, P.S.
- Fatuha, District - Patna, presently residing at C/o - Faujdari Mahto,
Jagjiwan Gali, Jagat Narayan Road, P.S. - Kadamkuan, District- Patna.
2. Anup Chai Son of Late Bujhawan Chai, Resident of Mohalla - Salimpur
Ahra, Gali No. 1, P.S. Gandhi Maidan, District- Patna.
3. Faggu Chai, Son of Late Bujhawan Chai, Resident of Mohalla - Salimpur
Ahra, Gali No. 1, P.S. Gandhi Maidan, District- Patna.
4. Dilip Paswan, Son of Vilash Paswan, Resident of Mohalla - Salimpur Ahra,
Gali No. 1, P.S. Gandhi Maidan, District- Patna.
5. Manoj Paswan, Son of Vilash Paswan, Resident of Mohalla - Salimpur Ahra,
Gali No. 1, P.S. Gandhi Maidan, District- Patna.
6. Ramsher Paswan, Son of Vilash Paswan, Resident of Mohalla - Salimpur
Ahra, Gali No. 1, P.S. Gandhi Maidan, District- Patna.
7. Sheela Devi, Wife of Jogendra Sao, resident of Village - Machhariyawan,
P.S. - Fatuha, District- Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Kumar Satya Kirti, Advocate
For the Respondent/s : Mr.Kaushal Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 10-04-2025
Heard learned counsel for the petitioners and learned
counsel for the respondent no. 1.
2. The petitioners are aggrieved by the order dated
04.05.2023
passed by learned Sub Judge-IV, Patna in Title Suit
No. 5387 of 2014 whereby and whereunder the petition filed by
Patna High Court C.Misc. No.1166 of 2023 dt.10-04-2025
the plaintiff/ respondent no. 1 under Order 22 Rule 4 of the
Code of Civil Procedure (in short "the Code") for substitution of
defendant no. 4 and 5 by their heirs/legal representatives has
been allowed.
3. Learned counsel for the petitioners submits that the
petition was filed by the plaintiff under Order 22 Rule 4 of the
Code for substitution of deceased defendant no. 4 and 5 but no
application for setting aside the abatement has been filed and no
orders have been passed for setting aside such an abatement
which set in after passage of 90 days from the dates of death of
the deceased defendant no. 4 and 5. Learned counsel referred to
the Order 22 Rule 4 clause 3 of the Code which prescribes
where within the time limited by law no application is made
under said Sub Rule 1 of Rule 4 of Order 22 of the Code the suit
shall abate as against the deceased defendant. Thus, learned
counsel submits that the impugned order is illegal and could not
be sustained.
4. Learned counsel appearing on behalf of respondent
no. 1 submits that the respondent is a lady coming from a
village and she is not aware about the legal process. She had no
relationship with the deceased defendants and she had no
knowledge about their deaths prior to moving of the application.
Patna High Court C.Misc. No.1166 of 2023 dt.10-04-2025
As soon as the plaintiff/respondent no. 1 came to know about
the deaths of the defendant nos. 4 and 5, she filed the
application for substitution of the deceased defendants along
with an application for condonation of delay in filing the
substitution petition. Learned counsel further submits that the
time of 90 days had not expired from the date of knowledge of
the plaintiff/petitioner. Learned counsel further submits that the
deaths occurred during the COVID-19 pandemic and the
Hon'ble Supreme Court in Suo Motu Writ Petition (CIVIL)
No(S).3/2020 has extended the limitation period from
15.03.2020 till 28.02.2022. Learned counsel further submits that
in the light of the order of the Hon'ble Supreme Court even the
abatement would not come into play. Learned counsel also
submits in case, the Court is inclined to intervene in the matter,
the matter may be remanded to the Court concerned with
opportunity to the plaintiff respondent to move appropriate
application for setting aside abatement.
5. Having regard to the submission made on behalf of
the parties, the simple issue involved is whether the learned trial
court was justified in allowing the substitution petition when the
suit is already abated against the deceased defendant.
Order 22 Rule 4 reads as under:
"4. Procedure in case of death of one of several
Patna High Court C.Misc. No.1166 of 2023 dt.10-04-2025
defendants or of sole defendant.
(1)Where one of two or more defendants dies and
the right to sue does not survive against the
surviving defendant or defendants alone, or a sole
defendant or sole surviving defendant dies and the
right to sue survives, the Court, on an application
made in that behalf, shall cause the legal
representative of the deceased defendant to be
made a party and shall proceed with the suit.
(2)Any person so made a party may make any
defence appropriate to his character as legal
representative of the deceased defendant.
(3)Where within the time limited by law no
application is made under sub-rule (1), the suit
shall abate as against the deceased defendant.
(4)The Court whenever it thinks fit, may exempt
the plaintiff from the necessity of substituting the
legal representatives of any such defendant who
has failed to file a written statement or who,
having filed it, has failed to appear and contest
the suit at the hearing; and judgment may, in such
case, be pronounced against the said defendant
not withstanding the death of such defendant and
shall have the same force and effect as if it has
been pronounced before death took place.
(5)Where-
(a)the plaintiff was ignorant of the death of a
defendant, and could not, for that reason, make
an application for the substitution of the legal
representative of the defendant under this rule
within the period specified in the Limitation Act,
1963(36 of 1963) and the suit has, in
consequence, abated, and
(b)the plaintiff applies after the expiry of the
period specified therefor in the Limitation Act,
1963(36 of 1963), for setting aside the abatement
and also for the admission of that application
under section 5 of that Act on the ground that he
had, by reason of such ignorance, sufficient cause
for not making the application within the period
specified in the said Act,
the Court shall, in considering the application
Patna High Court C.Misc. No.1166 of 2023 dt.10-04-2025
under the said section 5, have due regard to the
fact of such ignorance, if proved."
From perusal of the aforesaid provision it is obvious
that if in the period of limitation no application is made for
setting aside the abatement, the suit shall abate as against the
deceased defendant.
6. In the light of clear provision of law, it is apparent
that the order impugned has been passed against the provision of
law as substitution petition has been allowed without setting
aside the abatement and hence the impugned order dated
04.05.2023 could not be sustained and it is set aside.
7. Accordingly, the present petition is allowed.
8. However, the plaintiff/respondent is at liberty to
move appropriate application for setting aside abatement and
thereafter seek substitution of deceased defendants and the
learned trial court would pass orders after due consideration of
law as applicable to the facts of the case.
(Arun Kumar Jha, J)
Anuradha/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 17.04.2025
Transmission Date N/A
