Introduction

Procedural laws governing death of parties during litigation play a crucial role in ensuring justice is not defeated by technicalities. In a recent judgement, the Delhi High Court dealt with an application to bring on record legal heirs of a deceased defendant in a specific performance suit while condoning delay.

Factual and Procedural Background

The plaintiff Global Agro Corporation Pvt. Ltd. filed a suit for specific performance of an Agreement to Sell dated 23 August 2015 concerning a property in Shivaji Park, New Delhi. During pendency of the suit, Defendant No.1, Ajay Sharma, passed away on 5 September 2021. The plaintiff claimed knowledge of the death could only be confirmed around July 2022 through an investigating officer in a related complaint case.

Efforts were made to ascertain details of the legal heirs. An application under Order XXII Rule 4 CPC was filed in January 2023 to bring the legal heirs on record. A separate application under Section 5 of the Limitation Act was later filed seeking condonation of delay.

The plaintiff relied on the fact that the original plaintiff was a company and Defendant No.2 (brother of the deceased) did not inform the Court, and substitution occurred after assignment of interest. The legal heirs opposed the applications, contesting bona fides and locus.

Key Factual Points

Dispute Before the Court

The main questions were whether delay in filing the substitution application should be condoned, whether sufficient cause was shown, and whether a separate application for setting aside abatement was mandatory.

The plaintiff argued:

• Lack of prompt knowledge due to the deceased not residing at the property.
• Corporate structure of the plaintiff.
• Failure of Defendant No.2 to notify the Court.

The defendants contended:

• The application lacked bona fides.
• The assignee had no locus.
• The suit had abated due to expiry of limitation under Articles 120 and 121 of the Limitation Act.

Reasoning and Analysis of the Court

The Court examined Order XXII Rules 4 and 10A CPC, noting the duty of advocates to inform the Court of a party’s death. It held Defendant No.2 failed in this duty.

Relying on the Supreme Court judgment in Om Prakash Gupta v. Satish Chandra, 2025 SCC OnLine SC 291, the Court observed that once knowledge of death is gained, the application for substitution must be filed within 90 days and for setting aside abatement within the next 60 days. However, the prayer for setting aside abatement is inherent in a substitution application and a separate prayer is not always mandatory.

The Court applied principles from Perumon Bhagvathy Devaswom v. Bhargavi Amma, emphasizing a liberal approach where delay is not due to negligence but circumstances like difficulty in confirming death and details of heirs. It clarified that knowledge to an individual assignee could not be attributed to the corporate plaintiff, especially as substitution of the assignee occurred later. Sufficient cause was found due to the plaintiff’s reasonable efforts and the opposing party’s omission.

Important Legal Principles

• Order XXI I Rule 10A CPC casts a duty on advocates to inform the Court of the death of a party.
• Substitution application should ordinarily be filed within 90 days of knowledge of death.
• Application for setting aside abatement ordinarily follows within the next 60 days.
• A separate prayer for setting aside abatement is not always mandatory.
• Liberal interpretation should be adopted where sufficient cause exists.

Final Decision of the Court

The Court allowed both I.A. 620/2023 and I.A. 97/2026. The legal heirs of Defendant No.1 were brought on record. The plaintiff was directed to file an amended memo of parties. The applications stood disposed of.

Point of Law Settled

The judgement reaffirms a liberal construction of sufficient cause under Section 5 of the Limitation Act in substitution matters, particularly where death occurs during long-pending suits without regular hearings.

It clarifies that in applications under Order XXII Rule 4 CPC, the relief of setting aside abatement is inherent and need not be separately prayed for. It also highlights the mandatory duty under Order XXII Rule 10A CPC on counsel to inform the Court of a party’s death.

This will promote substantive justice over technical abatements in future civil suits and encourage prompt intimation by parties and advocates.

Case Details

Written By

Advocate Ajay Amitabh Suman
IP Adjutor (Patent and Trademark Attorney), High Court of Delhi

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