Judgment Intelligence
Petition DismissedSyed Riyajuddin Chishti & Anr. v. Chandra Prakash (deceased) & Ors.
2026:RJ-JP:40751
S.B. Civil Miscellaneous Application No. 135/2025 in S.B. Civil First Appeal No. 11/2006
- Court
- Rajasthan High Court
- Date of Decision
- 5 October 2026
- Bench
- Justice Ashok Kumar Jain
- Relevant Acts & Sections
- Code of Civil Procedure, 1908 — Order XXII Rules 4, 9 and 10A; Limitation Act, 1963
Final Outcome
Applications for setting aside the abatement, condonation of delay and substitution of the deceased respondent's legal heirs dismissed; miscellaneous application disposed of; no costs (paras 14-16). The order of 17.02.2025 dismissing the first appeal in abatement therefore stands (paras 7, 14).
Source Rajasthan High Court, hcraj.nic.in — order dated 05.10.2026
Key holdings
- Knowledge of a death gained through parallel litigation between the same parties defeats a later plea of ignorance (paras 8, 11).
- The appellants filed nothing to show they were unaware of the respondent-plaintiff's death (para 11).
- The Rule 10A duty and the liberal approach in Om Prakash Gupta were acknowledged but did not help on these facts (paras 10, 13).
- A lawyer's failure to pass on a copy of the abatement application was treated as the appellants' own fault (para 12).
Judgment digest by NyayVidhan: a summary of the court's judgment, not its text. The judgment itself is the authoritative version.
Brief Facts
Defendants Nos. 1 and 2 filed a first appeal against a trial court's judgment and decree of 07.12.2005; it was admitted, and a stay order passed, on 06.01.2006 (para 5). The sole respondent-plaintiff died on 07.10.2007 (para 7). In 2024 an application was filed for abatement of the appeal; the appellants' side sought time to reply on 13.01.2025, and on 17.02.2025 the High Court dismissed the appeal in abatement, noting the assertion that the appellants had known of the death since 2008 (paras 6-7). The appellants then sought to set aside the abatement, relying on Om Prakash Gupta and arguing that no intimation of the death had been given under Order XXII Rule 10A CPC (paras 1-2).
Court's Findings
The material in the abatement application showed that the appellants knew of the plaintiff's death, as the parties were litigating in several other matters (para 8). It set out the principles from Perumon Bhagvathy Devaswom, as considered in Om Prakash Gupta: a liberal approach to setting aside abatement where delay is not due to negligence or inaction, and usual condonation where the respondent died while the appeal awaited listing, the death was not reported, and nothing contradicts the appellant's claim of ignorance (para 9). It accepted that Rule 10A places the duty of reporting a death on the deceased party's lawyer and that procedure calls for a liberal, justice-oriented approach (para 10). But parties already in litigation who know of a death must seek substitution in all proceedings, and the appellants filed nothing to show they were unaware (para 11). Despite the 2024 application and an opportunity to respond, no steps were taken before the appeal abated; a lawyer's failure to inform them after receiving a copy was again the appellants' fault (para 12). The timeline from 07.10.2007 showed negligence and clear disregard of Order XXII CPC and the Limitation Act, leaving no ground for a liberal approach (para 13).
Legal Principle
Parties who are litigating against each other in several proceedings and know of a party's death must apply to substitute the legal representatives in every pending proceeding. Where the record shows such knowledge and prolonged inaction, the liberal approach to setting aside abatement does not apply and the delay will not be condoned (paras 11-13).
Precedents Relied Upon
- Om Prakash Gupta @ Lalloowa (now deceased) and others v. Satish Chandra (now deceased) 2025 INSC 183
Liberal, justice-oriented approach to setting aside abatement and the Rule 10A duty to report a death were acknowledged, but not applied where the appellants knew of the death through parallel litigation and took no steps.
- Perumon Bhagvathy Devaswom v. Bhargavi Amma (2008) 8 SCC 321
Considered in Om Prakash Gupta, whose passage on the principles for setting aside abatement is extracted.