Clarity on Abatement and Substitution: A Fresh Judicial Perspective Under Order XXII CPC

Introduction

The constant battle between procedural formality and substantive justice has been a long-standing issue in safeguarding a litigant’s rights to a fair hearing. The civil justice system of the nation has attempted to ensure efficient and merit-based resolution of disputes rather than ousting matters at the threshold over a technical error. The Apex Court in Om Prakash Gupta alias Lalloowa (Now Deceased) & Ors. v. Satish Chandra (Now Deceased) 2025 SCC OnLine SC 291 has further reinstated this principle thereby directing the judiciary to take a liberal stance while interpreting procedural requests.

Background

The decision of the Apex Court has come forth in a consolidated order under two connected civil appeals. The present appeals before the Hon’ble Supreme Court arose from orders dismissing appeals, passed by the Hon’ble UP High Court in two connected second appeals whereunder the parties to the appeals were the heirs to the original litigants in the suits filed for specific performance of contracts for sale. The order passed by the Hon’ble Supreme Court has shed light on the complexities surrounding procedural technicalities in the event of a death of any litigant. Further the Court has also clarified the position of law and its interpretation as under Order XXII of the Code of Civil Procedure, 1908 (“CPC”) in such circumstances. The Courts findings in this matter has set a precedent for the principles surrounding issues on abatement and substitution of parties under civil proceedings.

Findings

Order XXII of the CPC provides the procedure to ensure the continuation of civil proceedings despite the death of any party. In the event that any party dies during the pendency of any proceedings, an application ought to be moved to substitute the deceased party’s legal representatives. The limitation for moving such an application is ninety days from the date of death [1] . In the event that no specific application is filed for substitution of parties, the suit or appeal stands “automatically abated”. Further, such abatement can be set aside by filing an application to that effect within sixty days from the date of such abatement [2] .

In the present order the Hon’ble Supreme Court gave its findings on the interpretation of the law for
substitution and abatement of a suit or appeal, in case of death of a litigant.

a. Who shall file an application for substitution?

The Hon’ble Supreme Court held that under Order XXII Rule 4, there exists no mandate that such an application shall be filed by the Plaintiff or Appellant alone. Thus, the only requirement to avoid abatement of proceedings is for an application to be moved for substitution.

b. Implied prayer to set aside abatement

The Hon’ble Supreme Court while addressing this issue relied on the decision made in Mithailal Dalsangar Singh v. Annabai Devram Kini [3] . The Court while expanding on the principles laid down in Mithailal Dalsangar Singh held that a belated application for substitution of parties shall be deemed to have included a prayer for setting aside abatement despite the same not being explicitly prayed for in the application.

c. Order XXII Rule 10A

The Court further held that the limitation for such applications shall only commence against the surviving party once they have received a notice from the court regarding the death of a party. In this regard, the Court held that the pleader of the deceased litigant is duty bound to inform the courts in case of such deaths, prompting the court to duly notify the surviving litigant.

Inference

Against the backdrop this decision, principles governing abatement and substitution under Order XXII CPC have come to be comprehensively interpreted. The ruling highlights procedural agility essential for offsetting technicality against the overarching imperative of access to justice. By confirming that filing of substitution application is not mandatory in the name of the plaintiff or the appellant alone, and an implied request for setting aside abatement is acceptable, the Apex Court has also been progressive in its approach towards procedural equity. These guiding principles will prevent unnecessary procedural obstacles for litigants. This decision not only clarifies the operation of the rules of procedure but also ultimately strikes a balance between adhering to procedural norms and safeguarding substantive justice.

References

[1] Article 120 Limitation Act, 1963.

[2] Article 121 Limitation Act, 1963

[3] (2003) 10 SCC 691