Delhi High Court – Orders
Kulinder Singh Sahni & Anr vs Parlhad Singh Sawhney & Ors on 12 March, 2026
Author: Subramonium Prasad
Bench: Subramonium Prasad
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 420/2019 & I.A. 11238/2019, I.A. 12816/2019
KULINDER SINGH SAHNI & ANR ......Plaintiffs
Through: Mr. Rajiv Kumar Ghawana, Advocate
Mr. Gurpreet Singh and Mr. Inderjeet
Singh, Advs for LR (ii) of Plaintiff
No.2
versus
PARLHAD SINGH SAWHNEY & ORS ......Defendants
Through: Mr. Rizwan, Ms Sachi Chopra, Mr
Samarth Sharma, Advocates for
Defendants 1-5 & 19.
Mr. Harsh Vardhan Singh, & Ms.
Monika Bhardwaj Advs for D-
6,9,10,16 &17.
Ms. Beenashaw N. Soni, Addl.
Standing Counsel, DDA with Ms.
Katyani Malhotra, Advs.
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
ORDER
% 12.03.2026
I.A. 7220/2025 & I.A. 11258/2024
1. I.A. 7220/2025 has been filed for condonation of delay in filing the
application for bringing on record the Legal Heirs of deceased Plaintiff
No.2.
2. I.A. 11258/2024 is an application under Order XXII Rule 3 of the
CPC for bringing on record the Legal Heirs of the deceased Plaintiff
CS(OS) 420/2019 Page 1 of 11
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No.2/Man Mohan Singh Sahni, who passed away on 05.05.2021.
3. At the earlier juncture, since I.A. 11258/2024, which is an application
for bringing on record the Legal Heirs of the deceased Plaintiff No.2/Man
Mohan Singh Sahni, was not accompanied with any application seeking
condonation of delay, this Court vide Order dated 06.02.2025 directed the
Applicant to file an application for condonation of delay in filing I.A.
11258/2024.
4. Pursuant to Order dated 06.02.2025, I.A. 7220/2025 has been filed by
the Applicant seeking condonation of delay of 1090 days in filing the
application under Order XXII Rule 3 of the CPC for bringing on record the
Legal Heirs of deceased Plaintiff No.2 and setting aside the abatement, if
any.
5. Learned Counsel for the Applicant/Legal Heirs of Plaintiff No. 2
submitted that although the Plaintiff No. 2 passed away on 05.05.2021, the
legal heirs of Plaintiff No. 2 were made aware of the instant suit at a later
stage and only then, an appropriate application (I.A. 11258/2024) for
bringing on the Legal Heirs of Plaintiff No. 2 was filed by the Applicants.
He also stated that in compliance with the Order dated 06.02.2025, the
instant application being I.A. 7220/2025 was filed for condonation of delay
of 1090 days in filing the I.A. 11258/2024 and therefore, the said delay is
not deliberate and the same maybe condoned.
6. Heard the learned Counsel for the Applicant and perused the contents
of the application.
7. The Apex Court in Om Prakash Gupta v. Satish Chandra, 2025 SCC
OnLine SC 291, deals with the issue of condonation of delay in filing the
application of bringing the Legal Heirs of the deceased on record and setting
CS(OS) 420/2019 Page 2 of 11
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aside of the abatement in such cases. The relevant portion of the said
Judgment read as under:-
“9. The principles to guide courts while considering
applications for setting aside abatement and
application for condonation of delay in filing the
former application are laid down by this Court
in Perumon Bhagvathy Devaswom v. Bhargavi Amma.
An instructive passage from such decision reads as
follows:
“13. The principles applicable in considering
applications for setting aside abatement may thus be
summarised as follows:
(i) The words „sufficient cause for not making the
application within the period of limitation‟ should
be understood and applied in a reasonable,
pragmatic, practical and liberal manner,
depending upon the facts and circumstances of the
case, and the type of case. The words „sufficient
cause‟ in Section 5 of the Limitation Act should
receive a liberal construction so as to advance
substantial justice, when the delay is not on
account of any dilatory tactics, want of bona
fides, deliberate inaction or negligence on the
part of the appellant.
(ii) In considering the reasons for condonation of
delay, the courts are more liberal with reference
to applications for setting aside abatement, than
other cases. While the court will have to keep in
view that a valuable right accrues to the legal
representatives of the deceased respondent when
the appeal abates, it will not punish an appellant
with foreclosure of the appeal, for unintended
lapses. The courts tend to set aside abatement and
decide the matter on merits, rather than terminate
the appeal on the ground of abatement.
CS(OS) 420/2019 Page 3 of 11
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(iii) The decisive factor in condonation of delay, is
not the length of delay, but sufficiency of a
satisfactory explanation.
(iv) The extent or degree of leniency to be shown by a
court depends on the nature of application and
facts and circumstances of the case. For
example, courts view delays in making
applications in a pending appeal more leniently
than delays in the institution of an appeal. The
courts view applications relating to lawyer’s
lapses more leniently than applications relating to
litigant’s lapses. The classic example is the
difference in approach of courts to applications
for condonation of delay in filing an appeal and
applications for condonation of delay in refiling
the appeal after rectification of defects.
(v.) Want of „diligence‟ or „inaction‟ can be
attributed to an appellant only
when something required to be done by him, is not
done. When nothing is required to be done, courts
do not expect the appellant to be diligent. Where
an appeal is admitted by the High Court and is
not expected to be listed for final hearing for a
few years, an appellant is not expected to visit the
court or his lawyer every few weeks to ascertain
the position nor keep checking whether the
contesting respondent is alive. He merely awaits
the call or information from his counsel about the
listing of the appeal.”
(emphasis supplied in original)
The aforesaid passage is followed by other
instructive passages too on special factors which have
a bearing on what constitutes “sufficient cause”, with
reference to delay in applications for setting aside
abatement and bringing the legal representatives on
record. To the extent relevant for decisions on these
two appeals, the same are extracted hereunder:
CS(OS) 420/2019 Page 4 of 11
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“15. The first is whether the appeal is pending
in a court where regular and periodical dates of
hearing are fixed. There is a significant difference
between an appeal pending in a subordinate court
and an appeal pending in a High Court. In lower
courts, dates of hearing are periodically fixed and
a party or his counsel is expected to appear on
those dates and keep track of the case. The
process is known as „adjournment of hearing‟. …
16. In contrast, when an appeal is pending in a
High Court, dates of hearing are not fixed
periodically. Once the appeal is admitted, it
virtually goes into storage and is listed before the
Court only when it is ripe for hearing or when
some application seeking an interim direction is
filed. It is common for appeals pending in High
Courts not to be listed at all for several years. (In
some courts where there is a huge pendency, the
non-hearing period may be as much as ten years
or even more.) When the appeal is admitted by the
High Court, the counsel inform the parties that
they will get in touch as and when the case is
listed for hearing. There is nothing the appellant
is required to do during the period between
admission of the appeal and listing of the appeal
for arguments (except filing paper books or
depositing the charges for preparation of paper
books wherever necessary). The High Courts are
overloaded with appeals and the litigant is in no
way responsible for non-listing for several years.
There is no need for the appellant to keep track
whether the respondent is dead or alive by
periodical enquiries during the long period
between admission and listing for hearing. When
an appeal is so kept pending in suspended
animation for a large number of years in the High
Court without any date being fixed for hearing,
there is no likelihood of the appellant becoming
CS(OS) 420/2019 Page 5 of 11
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aware of the death of the respondent, unless both
lived in the immediate vicinity or were related or
the court issues a notice to him informing the
death of the respondent.
17. The second circumstance is whether the
counsel for the deceased respondent or the legal
representative of the deceased respondent notified
the court about the death and whether the court
gave notice of such death to the appellant. Rule
10-A of Order 22 casts a duty on the counsel for
the respondent to inform the court about the death
of such respondent whenever he comes to know
about it. When the death is reported and recorded
in the order-sheet/proceedings and the appellant
is notified, the appellant has knowledge of the
death and there is a duty on the part of the
appellant to take steps to bring the legal
representative of the deceased on record, in place
of the deceased. The need for diligence
commences from the date of such knowledge. If
the appellant pleads ignorance even after the
court notifies him about the death of the
respondent that may be an indication of
negligence or want of diligence.
18. The third circumstance is whether there is
any material to contradict the claim of the
appellant, if he categorically states that he was
unaware of the death of the respondent. In the
absence of any material, the court would accept
his claim that he was not aware of the death.
19. Thus it can safely be concluded that if the
following three conditions exist, the courts will
usually condone the delay, and set aside the
abatement (even though the period of delay is
considerable and a valuable right might have
accrued to the opposite party–LRs of the
deceased–on account of the abatement):
CS(OS) 420/2019 Page 6 of 11
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(i) The respondent had died during the period
when the appeal had been pending without
any hearing dates being fixed;
(ii) Neither the counsel for the deceased
respondent nor the legal representatives of
the deceased respondent had reported the
death of the respondent to the court and the
court has not given notice of such death to
the appellant;
(iii) The appellant avers that he was unaware of
the death of the respondent and there is no
material to doubt or contradict his claim.
(emphasis supplied)
10. Having the benefit of the aforesaid pertinent
guiding principles, we also consider it prudent to dwell
on another matter of some importance which quite
frequently this Court is called upon to consider. It is
the appropriate sequence in which remedies available
to have an order for setting aside abatement of a suit
should be pursued. This discussion is necessitated in
view of the facts in C.A. No. 13408 of 2024 revealing
that the appellants had applied for substitution and an
application for condonation of delay in filing the
former application was filed, without there being an
application for setting aside the abatement.
11. Rule 1 of Order XXII, CPC provides that when a
party to a suit passes away, the suit will not abate if the
right to sue survives. In instances where the right to
sue does survive, the procedure for bringing on record
the legal representative(s) of the plaintiff/appellant and
the defendant/respondent are provided in Rules 3 and
4, respectively, of Order XXII. The suit/appeal
automatically abates when an application to substitute
the legal representative(s) of the deceased party is not
filed within the prescribed limitation period of 90 days
from the date of death, as stipulated by Article 120 of
CS(OS) 420/2019 Page 7 of 11
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the Limitation Act, 1963. It could well be so that death
of a defendant/respondent is not made known to the
plaintiff/appellant within 90 days, being the period of
limitation. Does it mean that the suit or appeal will not
abate? The answer in view of the scheme of Order XXII
cannot be in the negative. In the event the
plaintiff/appellant derives knowledge of death
immediately after the suit/appeal has abated, the
remedy available is to file an application seeking
setting aside of the abatement, the limitation wherefor
is stipulated in Article 121 and which allows a period
of 60 days. Therefore, between the 91st and the
150th day after the death, one has to file an application
for setting aside the abatement. On the 151st day, this
remedy becomes time-barred; consequently, any
application seeking to set aside the abatement must
then be accompanied by a request contained in an
application for condonation of delay under Section 5 of
the Limitation Act in filing the application for setting
aside the abatement. Thus, the total time-frame for
filing an application for substitution and for setting
aside abatement, as outlined in Articles 120 and 121 of
the Limitation Act, is 150 (90 + 60) days. The question
of condonation of delay, through an application under
Section 5 of the Limitation Act, arises only after this
period and not on the 91st day when the suit/appeal
abates. From our limited experience on the bench of
this Court, we have found it somewhat of a frequent
occurrence that after abatement of the suit and after
the 150th day of death, an application is filed for
condonation of delay in filing the application for
substitution but not an application seeking
condonation of delay in filing the application for
setting aside the abatement. The proper sequence to be
followed, therefore, is an application for substitution
within 90 days of death and if not filed, to file an
application for setting aside the abatement within 60
days and if that too is not filed, to file the requisite
CS(OS) 420/2019 Page 8 of 11
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applications for substitution and setting aside the
abatement with an accompanying application for
condonation of delay in filing the latter application,
i.e., the application for setting aside the abatement.
Once the court is satisfied that sufficient cause
prevented the plaintiff/appellant from applying for
setting aside the abatement within the period of
limitation and orders accordingly, comes the question
of setting the abatement. That happens as a matter of
course and following the order for substitution of the
deceased defendant/respondent, the suit/appeal regains
its earlier position and would proceed for a
trial/hearing on merits. Be that as it may.
xxx
16. The law, laid down in Ram Charan (supra), is
clear. There seems to be no legal requirement that on
the death of a defendant, an application for
substitution in all cases has to be made by the plaintiff
only and that, any application, made by the
heir(s)/legal representative(s) of the deceased
defendant seeking an order to allow him/them step into
the shoes of the deceased defendant and to contest the
suit, cannot be considered. Once an application has
been made by either party and the court has been
informed about the death of a party and who the
heir(s)/legal representative(s) he has left behind, the
only thing that remains for the court is to pass an order
substituting the heir(s)/legal representative(s). Such
being the case, we have no doubt in holding that the
application moved by the heirs of Satish Chandra
(Civil Misc. Substitution Application No. 211 of 1997),
whereby the court was informed by them of his death
and the heirs that he had left behind, amounted to an
application for substitution which was legally
permissible and valid and deserved consideration.
CS(OS) 420/2019 Page 9 of 11
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xxx
20. The High Court having been duly informed of the
death of Satish Chandra, and substitution having been
prayed by the heirs of the deceased, it ought to have
proceeded to consider such application and pass an
order bringing the heirs of the deceased respondent on
record. This, the High Court omitted to order, perhaps,
due to inadvertence whereby pendency of the
application for substitution filed by the heirs of Satish
Chandra escaped its notice.”
8. The aforesaid Judgment indicates that once an application for
bringing the Legal Heirs on record stands filed, the application for setting
aside of the abatement is in-built in the application for bringing on record
the LRs of a party who passed away during the pendency of the Suit.
Therefore, no separate application be filed in this regard. Moreover, in the
interests of justice, the usual course of action taken by the Courts in such
cases is to take a liberal view in condoning any delay pertaining to bringing
the LRs of the deceased on record.
9. In view of the law laid down by the Apex Court and in view of the
facts and circumstances of the case, this Court is inclined to condone the
delay of 1090 days in filing I.A. 11258/2024 and set aside the abatement, if
any.
10. Let an amended memo of parties be filed by the Applicant bringing on
record the Legal Heirs of the deceased Plaintiff No.2/Man Mohan Singh
Sahni.
11. The applications are disposed of.
I.A. 271/2026 & I.A. 272/2026
CS(OS) 420/2019 Page 10 of 11
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12. This is an application under Order XXII Rule 4(5) of the CPC for
bringing on record the Legal Heirs of the deceased Defendant No.13/Amarjit
Singh, who passed away on 14.10.2022.
13. It is stated in the application that learned Counsel for Defendants did
not inform the Plaintiffs regarding the date of death of Defendant No.13 in
compliance of Order XXII Rule 10A of the CPC and the present application
has been filed by the Plaintiffs on coming to know of the death of Defendant
No.13.
14. List before the learned Joint Registrar for completion of pleadings on
05.05.2026.
SUBRAMONIUM PRASAD, J
MARCH 12, 2026
hsk
CS(OS) 420/2019 Page 11 of 11
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