Court Can Allow Substitution Petition Even Without Explicit Plea For Setting Aside Abatement If Application Justifies Relief: Jharkhand HC

Recently, the Jharkhand High Court has held that abatement by necessary implication can allow a substitution petition even without a specific plea to set aside, provided the entire application makes out a case for such relief.

Justice Sanjay Kumar Dwivedi, presiding over the case, observed, “In a case where the relief of setting aside of abatement has not been specifically claimed, the court may consider the complete application find out what is the prayer and if case is made out for condonation and for setting aside of abatement proceedings, the Court may condone the delay, may set aside abatement of the suit even without specific prayer.”

“Relief of impleading of legal representatives of one of the party may be if case is made out on the basis of the facts pleaded in the application, can be considered as an application for setting aside of abatement, which is a prayer inherently within the prayer for seeking relief of taking on record the legal representatives of the deceased in the suit.,” the Court added.

The above ruling came in a petition filed under Article 227 of the Constitution of India for quashing the order passed by the trial court.

As argued by the petitioners, belatedly the said substitution petition filed on behalf of two defendants had already abated and as there was no prayer of setting aside the abatement, the decision of the trial court allowing the substitution was illegal.

The Court reiterated that mere title is not decisive for deciding the nature of this application. It stated, "There appears to be no bar as such for filing consolidated application for the relief under Order 22 Ru 3 or 4 CPC and another under Order 22 Rule 9 CPC and for condonation of delay under section 5 of the Limitation Act."

Case Title: Bhudeo Choudhary vs MUKTA CHOUDHARY and ors

LL Citation: 2025 LiveLaw (Jha) 10

Click Here To Read Judgment