Supreme Court Dismisses Appeals Against High Court Orders Declaring Abatement and Rejecting Substitution in Second Appeal. Non-Substitution of Legal Heir of Co-Appellant Results in Whole Appeal Abating Where Decree is Joint and Indivisible, and Delay Condonation Denied as No Sufficient Cause Shown Under Order XXII CPC and Limitation Act.

Civil suit for declaration, recovery of possession, and mesne profits in respect of a house, contested on title and tenancy claims.

Appellants (LRs of Suresh Chandra) sought before Supreme Court to set aside High Court orders declaring second appeal abated and rejecting delay condonation applications, and to have the second appeal decided on merits.

Non-substitution of legal representatives of deceased co-appellant Ram Babu within time led to abatement of second appeal; High Court refused to condone delay.

Trial court dismissed the suit; First appellate court decreed the suit; High Court in second appeal declared appeal abated and later rejected condonation of delay applications.

Whether the order rejecting application(s) seeking condonation of delay for setting aside abatement and substitution of legal representatives of deceased-appellant Ram Babu suffers from any legal infirmity? If the answer to (a) is in the negative, whether the second appeal abated wholly or partially, or not at all, on account of non-substitution of LRs of deceased defendant-appellant no.2 (i.e., Ram Babu)?

Appellants argued that surviving appellant (LRs of Suresh Chandra) had an independent right to pursue the appeal under Order XLI Rule 4 CPC since the decree was based on grounds common to all defendants, so the appeal should not abate; alternatively, sufficient cause existed for the delay in substituting LRs of Ram Babu, and the abatement should be set aside. Respondent contended that LRs of deceased appellant were not before the Supreme Court, so their substitution could not be questioned; the decree was joint and indivisible, making abatement of the entire appeal necessary to avoid conflicting decrees; Order XLI Rule 4 does not exempt from the requirement of substitution under Order XXII CPC, and no sufficient cause was shown for the inordinate delay in filing the application.

When death of a co-appellant occurs and the limitation for substitution has expired, the court must consider whether sufficient cause is shown for condoning delay; where death was known to surviving appellants who are close relatives and no application is moved for years until after abatement is declared, no interference is warranted under Article 136 of the Constitution.

But before condoning the delay the Court must consider whether sufficient cause has been shown for condonation. (Para 9) In these circumstances, if the High Court found there was no sufficient cause to condone the delay, no fault can be found with its order as to justify our interference under Article 136 of the Constitution. (Para 10) Order XXII Rule 1 of the CPC lays down the general principle that if the right to sue survives, the suit shall not abate on death of either the plaintiff or the defendant. (Para 12)

Civil Suit No.13 of 1983 (renumbered 16A of 1997) was filed. Trial court dismissed the suit. First appellate court decreed it on appeal. The legal representatives of Suresh Chandra and Ram Babu filed Second Appeal No.446 of 2001 before the High Court of Madhya Pradesh at Gwalior. During pendency, Ram Babu (appellant no.2) died on 19 August 2015. Information of his death was given to the Court on 4 April 2016, but his LRs were not brought on record within time. The High Court, by order dated 21 February 2022, declared the appeal to have abated. Subsequently, two sets of applications (MCC No.697 and MCC No.700 of 2022) for condonation of delay and substitution were filed, which the High Court rejected on 4 August 2022. The present appeals by special leave were filed before the Supreme Court, leading to this judgment.

• Civil Procedure Code, 1908: Order XLI Rule 4, Order XXII Rules 1, 2, 3, 9, 11
• Limitation Act, 1963: Articles 120, 121, Section 5
• Constitution of India: Article 136