“Substitution by Either Party” – A New Judicial Clarification on Abatement and Substitution under Order XXII of CPC

1. Introduction

The Supreme Court of India’s decision in Om Prakash Gupta alias Lalloowa (Now Deceased) & Ors. v. Satish Chandra (Now Deceased) (2025 INSC 183) addresses significant procedural issues regarding the substitution of deceased parties and the abatement of suits and appeals under the Civil Procedure Code (CPC). The controversies arose in two separate but related second appeals involving heirs of the original litigants, who had filed suits for specific performance of contracts for sale of properties dating back to the early 1970s. Both cases highlighted the complexity that can arise when a party litigant passes away, especially in long-pending matters where appeals remain dormant for years.

This judgment clarifies that an application for substitution under Order XXII of the CPC may be moved by any party—not necessarily the plaintiff or the appellant—and further articulates that a prayer for substitution can also be construed as incorporating an implied prayer to set aside abatement. Consequently, the Supreme Court has provided a justice-oriented approach to dealing with procedural hurdles that otherwise risk denying litigants an opportunity for a merits-based determination of their case.

Below, this commentary provides a detailed look at the background of these appeals, the Court’s findings, and the precedent-setting legal principles that will influence future litigation on the abatement and substitution of parties.

2. Summary of the Judgment

The Supreme Court consolidated two connected civil appeals:

• Civil Appeal No. 13407 of 2024 (Om Prakash Gupta alias Lalloowa & Ors. v. Satish Chandra & Ors.):
  Satish Chandra had filed a suit for specific performance against Om Prakash Gupta, which was initially dismissed by the trial court but decreed on first appeal. During the pendency of the second appeal, Satish Chandra died, and his heirs filed a substitution application informing the High Court of his death. However, the High Court failed to notice the substitution application and eventually dismissed the appeal as abated. Years later, the heirs of Om Prakash sought to challenge the abatement and restore the appeal. In this litigation, the Supreme Court held that the High Court erred in finding that a separate substitution application was needed from the appellant’s side, when in fact the deceased respondent’s heirs had already effectively filed one.
• Civil Appeal No. 13408 of 2024 (Om Prakash Gupta alias Lalloowa & Ors. v. Smt. Rooprani & Ors.):
  Similar issues arose in a second suit for specific performance filed by the deceased’s wife, where both the original plaintiff and defendant died pending the second appeal. The High Court declined to condone the delay or allow substitution, stating the appellants were long aware of the plaintiff’s death. The Supreme Court, however, found that the exact date and circumstances of the petitioner’s death had not been clearly communicated in a straightforward manner, thus preventing the appellants from making a timely substitution application.

In both cases, the Supreme Court set aside the High Court’s orders refusing to condone delay and dismissing the appeals as abated. The second appeals were restored to their original numbers with directions to expedite the hearing in light of the substantial passage of time.

3. Analysis

3.1 Precedents Cited

Several Supreme Court decisions form the bedrock of the Court’s pronouncement:

• Perumon Bhagvathy Devaswom v. Bhargavi Amma (2008) 8 SCC 321: This judgment laid down principles for courts to follow when dealing with applications to set aside abatement and condone delay. It emphasized that the phrase “sufficient cause” in Section 5 of the Limitation Act, 1963, should receive a liberal and justice-oriented interpretation.
• Union of India v. Ram Charan (AIR 1964 SC 215): This earlier ruling clarified that there is no absolute requirement that only the plaintiff must move a substitution application if a defendant dies. If the defendant’s heirs themselves apply, it may suffice to avoid abatement.
• Gangadhar v. Raj Kumar (1984) 1 SCC 121: Important dicta on Rule 10-A of Order XXII, CPC, which oblige a pleader to inform the court upon learning of a litigant’s death. This procedural rule helps ensure that the surviving litigants are properly notified so they can take steps to avoid abatement.
• Mithailal Dalsangar Singh v. Annabai Devram Kini (2003) 10 SCC 691: This decision stated that even if parties do not use the precise legal formula of “abating” or “setting aside abatement,” their request for bringing legal representatives on record inherently includes a prayer to revive or continue the case.

The Supreme Court integrated these precedents to underscore that procedural rules are not ends in themselves but means to secure justice. Courts must thus balance the necessity for compliance with procedure against the principle of deciding cases on their substantive merits.

3.2 Legal Reasoning

1. Abatement and Substitution under CPC: Key Provisions
   Order XXII of the Code of Civil Procedure, 1908, provides rules ensuring that judicial proceedings can continue despite the death of a litigant. Normally, if within 90 days from the date of death (the limitation under Article 120 of the Limitation Act), no one applies to substitute the deceased party’s legal representative, the suit or appeal “automatically abates.” The abatement can be set aside if a proper application is filed within a further 60 days (Article 121), subject eventually to condonation of delay.
2. Who May File an Application for Substitution?
   The Court held that nothing in Order XXII mandates filing by the plaintiff or appellant alone. Instead, Rule 4’s requirement that “an application shall be made” does not prescribe by whom it must be made. Hence, if the heirs or legal representatives of the deceased defendant voluntarily move the court, that one application is sufficient to avoid abatement.
3. When Is There an Implied Prayer to Set Aside Abatement?
   Expanding on Mithailal Dalsangar Singh, the Supreme Court held that where parties have belatedly discovered the death of a litigant and have applied for substitution, a court may treat such application as including a prayer to set aside abatement. This approach fosters substantial justice, departing from a rigid or pedantic reading of procedural law.
4. Duty to Inform Under Rule 10-A of Order XXII CPC
   Rule 10-A was added to the CPC in 1976 to lessen the hardship to opposite parties who are unaware of another party’s death, especially during protracted appeals. The pleader of the deceased party should formally inform the court of the death, prompting the court to notify the other party. Only after receipt of notice or a formally recorded reference in court proceedings does the clock start ticking against the surviving party.
   
   In Om Prakash Gupta alias Lalloowa, the SC found that the mere mention of the plaintiff’s demise in an inconspicuous place in an affidavit regarding a different application is not the kind of “clear notification” intended under Rule 10-A. For the limitation clock to begin, the surviving party should be unequivocally put on notice that the suit or appeal may abate unless steps are taken.
5. Setting Aside Abatement and Restoring the Case
   The Court strongly reaffirmed that suits or appeals should be disposed of on their merits wherever possible. The Court thus faulted the High Court for insisting on multiple technical requirements (e.g., separate substitution applications) when an extant, valid substitution application was already filed by the heirs of the deceased respondent.

3.3 Impact

• Clarity on Procedural Flexibility: The decision clarifies that either party in an appeal—plaintiff/appellant or defendant/respondent—may initiate the substitution process. This would avoid confusion or potential for a technical trap if the “wrong” party filed the application first.
• Liberal Interpretation of Applications: Courts now have further authority to adopt a justice-oriented approach, reading substitution nearly synonymously with a plea to revive or continue the proceeding. This helps litigants avoid fatal procedural consequences due to small omissions in pleadings.
• Guidance on Rule 10-A Compliance: The judgment warns both counsel and courts that a fleeting or obscure mention of a party’s demise is insufficient notice. Courts must look for compliance with the spirit of Rule 10-A to ensure fair opportunity for substitution within the permissible time.
• Time and Limitation Nuances: The Court reiterates that once the matter is pending in the High Court without hearing dates, litigants cannot be expected to do constant “watch duty” for the other side’s survival. If there is no explicit or formal knowledge of death, the abatement clock usually does not start.

4. Complex Concepts Simplified

• Abatement: “Abatement” means the automatic termination of a suit or appeal, typically because the necessary steps to continue it have not been taken after a party’s death. Under CPC, if no substitution occurs within 90 days from a litigant’s death, the case abates by operation of law.
• Substitution: Substitution is the process by which the legal heirs or personal representatives of a deceased litigant “step into the shoes” of the deceased party. It ensures that the lawsuit or appeal does not become untenable solely due to a party’s death.
• Setting Aside Abatement: Even if a suit or appeal abates, it can be revived by an order setting aside the abatement, subject to time limits prescribed by the Limitation Act (60 days after the first 90 days lapse, total 150 days). If 150 days have passed, the court may condone the delay if “sufficient cause” is shown.
• Rule 10-A of Order XXII CPC: Introduced in 1976, it requires the counsel who becomes aware of a party’s death to formally inform the court. The court must then notify the opposing party, ensuring procedural fairness.
• Technical Pleadings vs. Substantive Justice: Courts prefer not to punish litigants for minor technical errors if the broader aim is to adjudicate cases on substantive arguments. This principle often leads to a liberal approach when interpreting procedural rules.

5. Conclusion

The Supreme Court in Om Prakash Gupta alias Lalloowa (Now Deceased) & Ors. v. Satish Chandra (Now Deceased) (2025 INSC 183) provides a much-needed clarity on the interplay between abatement, substitution, and the duty to inform under Rule 10-A of Order XXII of the CPC. An application filed by the heirs of a deceased respondent can validly serve as a substitution application, and courts should adopt a liberal stance, interpreting requests to substitute as also seeking to set aside abatement.

This decision has reset the judicial understanding so that the threshold for restoring suits or appeals on their merits is lowered, provided there is no evidence of misuse of process or intentional negligence by the surviving parties. The Supreme Court’s judgment ensures that substantive justice is given precedence over procedural formality, ultimately safeguarding the litigant’s right to a fair hearing. The direction to the High Court to dispose of these decades-old disputes expeditiously underscores the imperative of efficient, merit-based resolution in India’s civil justice system.

Overall, practitioners and litigants must note that substitution applications may be filed by any interested party, and even if the substitution request lacks explicit language for setting aside abatement, courts are empowered—and indeed encouraged—to construe it in a way that fosters the resolution of disputes on their merits instead of allowing them to fail on technicalities.