Principles on substitution when a party dies
The principles to guide courts while considering applications for setting aside abatement and consequent impleading when a party dies are laid down by the Supreme Court (SC) Om Prakash Gupta Alias Lalloowa (Now Deceased) v Satish Chandra (Now Deceased), based on the well settled judicial precedents on the matter.
If no substitution occurs after death, the case gets abated
Under the Code of Civil Procedure (CPC), if no substitution occurs within 90 days from a litigant’s death, the case abates by operation of law.
Substitution is the process by which the legal heirs or personal representatives of a deceased litigant step into the shoes of the deceased party.
Substitution ensures that the lawsuit or appeal does not abate solely due to a party’s death.
Law does not say who should make substitution
The Order XXII Rule 4 of the CPC lays down the procedure in case of death of one of several defendants or of sole defendant.
It is clear on perusal of the rule that it does not expressly provide who between the parties to a civil suit is to present an application for substitution.
Anyone can file an Application for Substitution
In Union of India v Ram Charan & Others, the SC states that the procedure for substitution of a party when the party to a lis dies, requires an application for the making of the legal representatives of the deceased plaintiff or defendant, a party to the suit.
But it does not say who is to present the application. Ordinarily it would be the plaintiff as by the abatement of the suit the defendant stands to gain.
However, an application is necessary to be made for the purpose of substitution. If no such application is made within the time allowed by law, the suit abates so far as the deceased plaintiff is concerned or as against the deceased defendant.
No rule says the plaintiff shall apply for substitution
The SC says that there exists no legal provision which says that on the death of a defendant, an application for substitution in all cases has to be made by the plaintiff only.
The SC adds that no provision says 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.
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