Delay Beyond 150 Days in Substitution Requires a Separate Section 5 Application; ‘Advocate Was Preoccupied’ Is Not Sufficient Cause: Supreme Court

Case Name: Bishen Prasad Tiwari v. Sheela Devi

Date of Judgment: 17 July 2026

Citation: 2026 INSC 760

Bench: Justice J.B. Pardiwala and Justice K. Vinod Chandran

Held: The Supreme Court held that legal representatives may seek substitution within 90 days of a litigant’s death. After abatement, an application to set it aside may be filed within the subsequent 60 days. Where the total delay exceeds 150 days, a separate application under Section 5 of the Limitation Act, supported by an affidavit disclosing sufficient cause, is mandatory. A vague assertion that the advocate was preoccupied with personal work does not constitute sufficient cause. Liberal interpretation of procedural law cannot be used to disregard limitation or deprive the opposing party of substantive rights accrued through passage of time.

Summary: The case concerned a delay of 501 days in filing applications to set aside abatement and substitute the legal representatives of a deceased appellant. The Appellate Court rejected the applications because no separate plea for condonation of delay under Section 5 of the Limitation Act had been filed, and the only explanation offered was that the engaged advocate had been occupied with personal work.

The High Court restored the appeal, observing that courts should not adopt a hyper-technical approach and that a litigant should not suffer for an advocate’s lapse. It permitted substitution of the legal representatives subject to payment of ₹25,000 as costs.

The Supreme Court disagreed with the High Court’s reasoning. It clarified that Order XXII Rule 9(3) CPC expressly makes Section 5 of the Limitation Act applicable to delayed applications for setting aside abatement. Consequently, where substitution is sought beyond the aggregate statutory period of 150 days, condonation cannot be presumed merely because reasons are mentioned in another application. A distinct application seeking condonation, supported by sufficient and specific reasons, must be filed.

However, on the peculiar facts, the Court found that the legal representatives were the deceased defendant’s daughters, had a strained relationship with him and were unaware of the litigation until they received a notice from the Tehsildar. After being directed in the second appeal to approach the Appellate Court, they did so within two months and ten days. Since their delayed knowledge was not disputed, the Court declined to disturb the operative relief granted by the High Court.

Decision: The Supreme Court upheld the restoration of the appeal and substitution of the deceased appellant’s legal representatives, subject to payment of ₹25,000 as costs, but expressly rejected the High Court’s legal reasoning.