Tripura High Court Sets Aside District Judge's Order Requiring Section 5 Application for Substitution Filed Within Abatement Window
Chief Justice M.S. Ramachandra Rao held that legal heirs who file a substitution application within sixty days of abatement need not separately seek condonation of delay under Section 5 of the Limitation Act, restoring Title Appeal 19 of 2025 for decision on merits.
The High Court of Tripura, Agartala, has set aside two orders passed on 26 November 2025 by the District Judge, Gomati District, Udaipur, which had dismissed both a substitution application and a condonation of delay petition in Title Appeal No. 19 of 2025. Chief Justice M.S. Ramachandra Rao, deciding CRP No. 14 of 2026 and RSA No. 03 of 2026 by a common order pronounced on 30 June 2026, found that the District Judge had committed a patent error of law in requiring the legal heirs of the deceased second defendant to file a Section 5 application before their substitution application could be considered, when that substitution application had in fact been filed within the sixty-day window available after abatement of the appeal. The Chief Justice also found that the reasons furnished for the delay in filing the Title Appeal itself deserved a more liberal reading than the District Judge had given them, particularly given the ages of the defendants, the withdrawal of their counsel without notice, and their active pursuit of other remedies.
The Underlying Title Suit and Ex Parte Decree
Title Suit No. 02 of 2021 was filed before the Civil Judge (Senior Division), Udaipur, Gomati District, by one Sri Parimal Saha. He sought a declaration of his right, title and interest in the suit schedule property and recovery of possession. His case was that the property had belonged to his mother, Smt. Soudamini Saha, that she had permitted Manoranjan Saha — father of the defendants — to remain on the land as a permissive possessor, and that the defendants continued in occupation on the same terms after both predecessors died. He pointed to CS Khatian No. 1353 of mouza Udaipur Town, which recorded his mother's name and noted Manoranjan Saha as a permissive possessor.
The defendants, Sri Sukesh Chandra Saha (first defendant, aged 77) and the legal heirs of Lt. Narayan Saha (second defendant), filed a Written Statement contesting the plaintiff's claim. They contended that the land was Government land and that the Khatian recorded their predecessor and one Gopi Ranjan Chakraborty as unlawful occupiers, with no mention of Smt. Soudamini Saha.
Their counsel, Sri Jayanta Prasad Deb, filed a petition on 19 December 2022 seeking exemption from conducting the trial on the ground that he had been unable to communicate with the defendants for a long time. The trial court allowed this on 1 February 2023 and directed the plaintiff to file requisites for issuing summons to the defendants within three days. When the matter came up on 20 March 2023, the plaintiff had not paid the process fee as directed. The trial court nonetheless proceeded to set the defendants ex parte, characterising its earlier order as one made inadvertently. It directed the plaintiff to lead evidence and produce witnesses. The ex parte decree was passed on 22 August 2023.
Failed Attempt to Set Aside the Ex Parte Decree
After the decree, the defendants filed Civil Misc. No. 86 of 2024 under Order IX Rule 13 of the Code of Civil Procedure before the trial court to set aside the ex parte decree, accompanied by Civil Misc. (Condo) No. 12 of 2024 seeking condonation of a delay of 15 months and 27 days in filing that petition. Both were dismissed on 21 June 2025. The trial court's dismissal of the Order IX Rule 13 application was on the ground that the first defendant had filed it through his son without an accompanying application under Order XXXII CPC, without noticing that the second defendant was alive and also a party to the application.
The defendants had come to know about the ex parte decree only after receiving summons in Execution Case (T) No. 01 of 2024 filed by the respondent for executing the decree. They had also engaged another advocate, Sri Atanu Das of the Udaipur Bar, who returned the case records to the second defendant on 16 December 2024 with a no-objection on the vakalatnama for conduct of the case by another lawyer.
The Title Appeal, Abatement, and the District Judge's Orders
The defendants filed Title Appeal No. 19 of 2025 before the District Judge, Gomati District, Udaipur, along with Civil Misc. (Condo) No. 19 of 2025 under Section 5 of the Limitation Act, 1963, seeking condonation of a delay of 23 months and 8 days in filing the appeal. Their explanation was that their original counsel had left the State, that a subsequent counsel withdrew without informing them, that the first defendant was intermittently of unsound mind, and that the second defendant — a senior citizen — fell ill and failed to follow up believing the lawyer would update him.
After the appeal was filed, the second defendant Lt. Narayan Saha died on 20 August 2025. An application under Order XXII Rule 4 read with Section 151 CPC was filed by his legal heirs — Smt. Swapna Rani Saha, Sri Santanu Saha, and Smt. Jhumu Saha — to be brought on record. The 90-day window for substitution expired on 20 November 2025, on which date the appeal abated. The substitution application was filed on 26 November 2025, six days after abatement but well within the sixty-day window from the date of abatement during which an application to set aside abatement may be filed under Article 121 of the Limitation Act.
The District Judge dismissed the substitution application on 26 November 2025, holding that no Section 5 application had been filed to condone the delay in filing the substitution application. On the same day, he dismissed the condonation petition in Civil Misc. (Condo) No. 19 of 2025, finding the reasons for the delay in filing the appeal vague and unsatisfactory. He held that litigants were expected to remain vigilant, that court orders were available on official websites, and that no complaint had been filed against the allegedly defaulting counsel. The appeal was then dismissed as a consequence.
Chief Justice Rao's Analysis of the Abatement Provisions
Chief Justice Rao identified the core legal error in the District Judge's approach as a misreading of Articles 120 and 121 of the Limitation Act, 1963 in combination.
Article 120 fixes 90 days from the date of death for filing an application to bring legal representatives on record. If that period expires without such an application, the suit or appeal abates. Article 121 then provides a further 60 days from the date of abatement within which an application to set aside the abatement may be filed.
The Chief Justice reasoned that if the substitution application is filed after the 90-day window but within the 60-day window from abatement, no Section 5 application is required at all. In the present case, the application under Order XXII Rule 4 was filed on 26 November 2025 — six days after abatement on 20 November 2025 — and therefore squarely within the 60-day period. The District Judge's requirement of a Section 5 application in those circumstances had no basis in law.
The Chief Justice further relied on the Supreme Court's decision in Mithailal Dalsangar Singh & Others v. Annabai Devram Kini & Others (2003) 10 SCC 691, which held that a prayer for bringing legal representatives on record without specifically praying for setting aside of abatement may in substance be construed as a prayer for setting aside the abatement. The Court there had said that courts must adopt “a justice-oriented approach” and that a litigant ought not to be denied a hearing on merits unless by gross negligence, deliberate inaction or misconduct. This was reiterated in Om Prakash Gupta alias Lalloowa (now deceased) & Others v. Satish Chandra (now deceased) AIR 2025 SC 1201.
On the basis of this analysis, the Chief Justice held that the dismissal of the substitution application was patently illegal, amounted to refusal to exercise jurisdiction vested in the District Judge, and warranted interference under Article 227 of the Constitution of India.
Condonation of Delay in Filing the Title Appeal
Having found the substitution order unsustainable, the Chief Justice went on to address the District Judge's separate reasons for rejecting the condonation application for the delay in filing the Title Appeal.
The District Judge had held that the defendants were expected to remain vigilant, that orders were available on court websites, and that the absence of a complaint against the allegedly defaulting counsel made their explanation doubtful. Chief Justice Rao found each of these reasons difficult to sustain on the facts.
The Chief Justice observed that the defendants' earlier counsel had withdrawn from the suit without informing them, and that they had not simply been passive: they had filed Civil Misc. No. 86 of 2024 under Order IX Rule 13 CPC and diligently pursued it. The fact that that application had also been dismissed — and dismissed on an arguably erroneous ground, in that the trial court overlooked the second defendant's continued existence — was a material circumstance that the District Judge had not addressed at all, despite being part of the trial court record.
On the question of digital access to court orders, the Chief Justice held that senior citizens who are not technologically savvy cannot be penalised for not tracking case stages on an official website. The first defendant, aged 77, was alleged to be intermittently of unsound mind. The second defendant was a senior citizen aged 61. The stakes in the suit — declaration of title to immoveable property and recovery of possession — were substantial.
Relying on Baswaraj v. LAO (2013) 14 SCC 81 and Perumon Bhagvathy Devaswom, Perinadu Village v. Bhargavi Amma (dead) by Lrs and Others (2008) 8 SCC 321, the Chief Justice affirmed that the decisive factor in condonation of delay is not the length of delay but the sufficiency of a satisfactory explanation, and that Section 5 must receive a liberal construction to advance substantial justice when the delay is not attributable to dilatory tactics, want of bona fides, or deliberate inaction.
The Chief Justice concluded: “it would be travesty of justice to deny them even one opportunity to contest the matter on merits.”
On the High Court's power to act, the Chief Justice noted that the Supreme Court in Radhey Shyam v. Chhabi Nath (2015) 5 SCC 423 had held that despite the curtailment of revisional jurisdiction under Section 115 CPC, the High Court's jurisdiction under Article 227 of the Constitution remains unaffected, and that this was reiterated in K.P. Natarajan v. Muthalammal (2021) 15 SCC 817, which had specifically held that in a revision arising from dismissal of a Section 5 petition, the High Court may exercise powers under Article 227 and even set aside an ex parte decree.
Order
By the order pronounced on 30 June 2026, Chief Justice Rao allowed both CRP No. 14 of 2026 and RSA No. 03 of 2026. The specific directions are as follows:
The order dated 26 November 2025 passed by the District Judge, Gomati District, Udaipur in Civil Misc. (Condo) No. 19 of 2025 in Title Appeal No. 19 of 2025 is set aside. The consequential order of the same date dismissing Title Appeal No. 19 of 2025 is also set aside. The order dismissing the substitution application filed by the legal heirs of the second defendant Lt. Narayan Saha is set aside; that application is allowed and the legal heirs are to be substituted in place of the second defendant in the appeal.
Civil Misc. (Condo) No. 19 of 2025 is allowed. Title Appeal No. 19 of 2025 is restored to the file of the District Judge, Gomati District, and is to be decided on merits after hearing both sides within four months from the date of the order.
Pending the decision in the Title Appeal, the execution proceedings in Ex (T) No. 01 of 2024 arising out of Title Suit No. 02 of 2021 on the file of the Civil Judge (Senior Division), Udaipur, Gomati District, shall remain stayed.