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Uttarakhand High Court
SA/2/2013 on 13 March, 2026
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13.03.2026 SA No.2 of 2013
Hon'ble Siddhartha Sah, J.
Mr. Mohd. Matlub, learned counsel for the
appellant.
2. Mr. Mahesh Chandra Pant, learned counsel for
the respondents.
3. IA No. 167 of 2025 is an application seeking
substitution of respondent Nos. 5, 7 and 10.
4. The said substitution application has been filed
beyond the prescribed period of limitation and, on
account thereof, abatement has occurred. Hence, an
application for setting aside the abatement, being IA
No. 174 of 2026, has been filed. Since the substitution
application has also been filed beyond the prescribed
period of limitation, a delay condonation application,
being IA No. 172 of 2026, has also been filed seeking
condonation of delay of 944 days in substituting the
legal heirs of deceased respondent No. 5 (Mandan
Singh), 1754 days in substituting the legal heirs of
deceased respondent No. 7 (Harish Singh), and 128
days in substituting the legal heirs of deceased
respondent No. 10 (Kishan Singh).
5. In support of the delay condonation application,
an affidavit has been filed wherein it has been stated
that the respondents informed about the death of
respondent Nos. 5, 7 and 10 vide Misc. Application IA
No. 166 of 2024 dated 19.12.2024. Thereafter, the
appellant/applicant filed the substitution application,
being IA No. 167 of 2025 dated 26.03.2025. It has
further been stated that the applicant came to know
about the death of respondent Nos. 5, 7 and 10 only
on 19.12.2024, and prior to the said date no
information was given to the appellant/applicant by
the respondents. It has also been stated that the
deceased respondent Nos. 5, 7 and 10 did not reside in
the village Nagari Gaon, Patti Bhowali, District
Nainital. Thus, the delay in filing the substitution
application is neither deliberate nor intentional.
6. Learned counsel for the respondents has raised
an objection contending that the delay is inordinate
and the explanation put forward is not acceptable.
7. Since, on account of the delay in filing the
substitution application, abatement has occurred qua
respondent Nos. 5, 7 and 10, an application for setting
aside the abatement, being IA No. 174 of 2026, has
been filed. The said application is duly supported by
an affidavit wherein statements similar to those made
in the affidavit filed in support of the delay
condonation application have been reiterated, and a
prayer has been made for setting aside the abatement
qua respondent Nos. 5, 7 and 10.
8. Considering the averments made in the
affidavits filed in support of the delay condonation
application as well as the application for setting aside
abatement, and in view of the fact that the
appellant/applicant came to know about the death of
respondent Nos. 5, 7 and 10 only on 19.12.2024
through Misc. Application IA No. 166 of 2024, and
that the said respondents were not residing in the
village Nagari Gaon, Patti Bhowali, District Nainital,
this Court finds sufficient cause for the delay.
Accordingly, in the interest of justice, the delay
condonation application and the application for setting
aside abatement are allowed. The delay in filing the
substitution application is condoned and the
substitution application shall be treated as having been
filed within time. Consequently, the abatement that
has occurred qua respondent Nos. 5, 7 and 10 is
hereby set aside.
9. In such view of the matter, the substitution
application, being IA No. 167 of 2025, is also
allowed. However, considering the inordinate delay in
filing the substitution application, the same is allowed
subject to payment of costs of Rs. 3,000/-, payable by
the appellant to the respondents within a period of ten
days.
10. Further, IA No. 169 of 2025 is an application
filed by the appellant seeking substitution of
respondent No. 4 (Dhan Singh). The said application
has been filed beyond the prescribed period of
limitation and is accompanied by a delay condonation
application (IA No. 173 of 2026) and an application
for setting aside abatement (IA No. 175 of 2026).
11. The delay condonation application (IA No. 173
of 2026) is duly supported by an affidavit wherein it
has been stated that the respondents informed about
the death of respondent No. 4 vide Misc. Application
IA No. 168 of 2025 dated 08.07.2025, and thereafter
the appellant/applicant filed the substitution
application, being IA No. 169 of 2025 dated
11.11.2025. It has further been stated that the
applicant came to know about the death of respondent
No. 4 only on 08.07.2025, and prior to the said date
no information was given to the appellant by the
respondents. It has also been stated that the deceased
respondent No. 4 did not reside in the village Nagari
Gaon, Patti Bhowali, District Nainital.
12. IA No. 175 of 2026 is the application for setting
aside abatement, which is duly supported by an
affidavit wherein statements similar to those made in
the affidavit filed in support of the delay condonation
application have been made.
13. Since there is a delay of 92 days in substituting
the legal heirs of respondent No. 4, and the same has
not been seriously opposed by learned counsel for the
respondents, this Court finds sufficient cause for
condoning the delay.
14. In such view of the matter, the delay
condonation application (IA No. 173 of 2026) and the
application for setting aside abatement (IA No. 175 of
2026) are hereby allowed. The substitution application
(IA No. 169 of 2025) shall be treated as having been
filed within limitation and the same is accordingly
allowed.
15. The appellant is directed to place on record the
amended cause title of the appeal incorporating the
aforesaid substitutions within a period of ten days.
16. List on 21.05.2026.
(Siddhartha Sah, J.)
13.03.2026
BS
