J&K High Court Sets Aside Abatement in Civil Second Appeal, Faults Respondents’ Counsel for Suppressing Death of Party

Justice Sanjeev Kumar condoned a 12-day delay and set aside abatement in CSA No. 8/2013, finding that respondents’ counsel breached Order 22 Rule 10-A by concealing a party’s death and that “sufficient cause” under Section 5 of the Limitation Act must receive a considerably more liberal approach in abatement matters.

The High Court of Jammu and Kashmir and Ladakh at Srinagar has set aside the abatement of a Civil Second Appeal that had been pending since 2013, after finding that the respondents’ counsel deliberately withheld information about the death of one of the respondents in violation of Order 22 Rule 10-A of the Code of Civil Procedure, 1908. Justice Sanjeev Kumar, sitting singly, condoned delays of 12 days and 72 days respectively in filing applications to set aside the abatement and to substitute the legal heirs of the deceased respondent. The order, pronounced on 29 May 2026, turns on the duty of a pleader to inform the Court of a client’s death and on the liberal construction that courts must give to “sufficient cause” when abatement results from that failure.

The Civil Second Appeal and the Death of Respondent No. 7

CSA No. 8/2013 is a Civil Second Appeal in which Maqbool Buhroo and others are the appellants and Ahad Buhroo and others are the respondents. During the pendency of the appeal, one of the respondents — Mohd. Ashraf, son of Ahad Buhroo, resident of Mutalhama, Tehsil and District Kulgam — died on 21 March 2020. He was respondent No. 7 in the proceedings.

No application for substitution of his legal heirs was filed within the 90-day period prescribed under Article 120 of the Limitation Act, 1963. By operation of sub-rule (3) of Rule 4 of Order 22 CPC, the appeal abated as against respondent No. 7 on the expiry of that period. No formal order of abatement was passed by the Court at that stage.

The matter lay dormant until 8 October 2025, when the surviving respondents — respondents No. 1 to 6 and 8 to 11 — filed CM No. 6593/2025 seeking dismissal of the entire appeal as having abated on account of the death of respondent No. 7. That application triggered a cluster of five miscellaneous applications that the Court disposed of together.

The Five Applications Before the Court

CM No. 6593/2025 was the surviving respondents’ application for dismissal of the appeal as abated. The appellants responded with four applications of their own.

CM No. 1407/2026 sought condonation of a 12-day delay in filing the application to set aside the abatement. The appellants pleaded that they first learnt of the death of respondent No. 7 only when CM No. 6593/2025 was served on them. They added that their senior counsel, Mr. Altaf Haqani, had been abroad from November 2025 to February 2026 and that the case records were with him, making it impossible to act immediately.

CM No. 1408/2026 was the substantive application for setting aside the abatement. The appellants again relied on their claimed ignorance of the death and on the failure of the respondents’ counsel to comply with Rule 10-A of Order 22.

CM Nos. 1409/2026 and 1410/2026 sought condonation of a 72-day delay in filing the substitution application and the actual substitution of the legal heirs of respondent No. 7, respectively.

The surviving respondents opposed all four applications. They contended that the appellants and the deceased respondent lived in the same village, that respondent No. 7 was buried in the common graveyard, and that the parties’ houses were adjacent to each other. They also pointed to CM No. 4919/2024, filed on 12 August 2024, in which the word “dead” appeared against the name of respondent No. 7, as evidence that the appellants had been put on notice well before October 2025. On the counsel’s absence abroad, the respondents argued that Mr. Haqani was available in Srinagar until November 2025 and that any lawyer in his office could have filed the application.

The Duty Under Order 22 Rule 10-A and the “Dead” Entry in CM No. 4919/2024

Justice Sanjeev Kumar examined the respondents’ reliance on CM No. 4919/2024 closely. He found that the word “dead” had been inserted against respondent No. 7’s name in a font “far smaller than the font used in the application as well as the title.” The Court characterised this as “a clever attempt” to intimate the death while keeping the appellants in the dark until the limitation period expired. Crucially, the entry did not state the day, month, or year of death. The Court held that such an entry could not amount to compliance with the duty imposed by Rule 10-A of Order 22.

Rule 10-A, inserted by Section 73 of Act 104 of 1976 with effect from 1 February 1977, requires a pleader who comes to know of the death of the party he represents to inform the Court, whereupon the Court gives notice to the other side. The object, as the Court noted, is to avoid unnecessary disputes of fact about a party’s death, since the pleader is best placed to know of it. The respondents’ counsel had not performed this duty at any point before filing CM No. 6593/2025 on 8 October 2025 — more than five years after respondent No. 7 died.

The Court observed that had the respondents’ counsel communicated the death to the Court, the appellants’ counsel would have been put on notice and would have taken the requisite steps for substitution within the prescribed period.

Whether the Appellants Knew of the Death: A Disputed Question of Fact

The respondents pressed hard on the proximity argument: same village, adjacent houses, common graveyard. Justice Sanjeev Kumar acknowledged that the appellants might well have known of the death as a matter of fact. He declined, however, to treat that factual possibility as decisive.

The Court reasoned that even if the appellants knew their neighbour had died, they could not be expected to know the legal consequences — specifically, whether the appeal would proceed against the surviving respondents or would abate, and what procedural steps were required within what time. The “niceties of law” on abatement are not knowledge that lay parties can be presumed to possess.

The Court also noted that whether the appellants actually knew of the death was a disputed question of fact that could not be resolved in these interlocutory applications. Taking the most conservative date — 8 October 2025, the date CM No. 6593/2025 was filed — the delay in seeking to set aside the abatement was only 12 days.

Liberal Construction of “Sufficient Cause” in Abatement Matters

Justice Sanjeev Kumar set out the legal framework in some detail. Under Article 120 of the Limitation Act, an application for substitution must be filed within 90 days of the death. Under Article 121, an application to set aside the abatement must be filed within 60 days. If either application is delayed, Section 5 of the Limitation Act permits the Court to condone the delay on sufficient cause being shown.

Sub-rule (5) of Rule 4 of Order 22 specifically addresses the situation where the appellant was ignorant of the death of a respondent and, for that reason, could not apply for substitution in time. It directs the Court, when considering an application under Section 5 of the Limitation Act, to have due regard to the fact of such ignorance if proved.

The Court held that the expression “sufficient cause” in Section 5 of the Limitation Act must receive a liberal construction in abatement matters — more liberal than in other categories of delay. The decisive factor, the Court said, is not the length of the delay but the sufficiency of the explanation. Courts are generally more liberal in setting aside abatement than in other cases because the alternative is to non-suit the appellant for an unintended lapse, foreclosing the appeal on technical grounds rather than on merits.

The Court also reiterated that the rules of limitation are not meant to destroy rights but to prevent dilatory tactics. There is no presumption that delay is always deliberate. Where the delay is not attributable to dilatory tactics, want of bona fides, deliberate inaction, or negligence, the Court should lean towards deciding the matter on merits.

On the abatement mechanism itself, the Court clarified that abatement under sub-rule (3) of Rule 4 of Order 22 occurs by operation of law on the expiry of 90 days from the date of death, without any formal judicial declaration. A formal order is nonetheless required to bring judicial proceedings to an end, which is why the surviving respondents filed CM No. 6593/2025 seeking such a declaration.

Outcome

Justice Sanjeev Kumar condoned the delay in filing the application to set aside the abatement and the delay in filing the substitution application. The abatement of CSA No. 8/2013 was set aside. The legal heirs of deceased respondent No. 7, Mohd. Ashraf, were taken on record. All five miscellaneous applications — CM Nos. 6593/2025, 1407/2026, 1408/2026, 1409/2026, and 1410/2026 — were disposed of.

The appellants’ counsel was directed to file a fresh memo of parties. The Registry was directed to issue notice to the substituted respondents in place of respondent No. 7, returnable within four weeks, subject to the appellants taking requisite steps within two weeks. The matter was listed for 17 July 2026.