# Deepak Prasad & Ors. Revisionists v. Ajay Prasad

- **Citation:** (2025) 11 ILRA 1426
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-20
- **Case number:** Civil Revision No. 77 of 2025
- **Bench:** Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-prasad-ors-revisionists-v-ajay-prasad-54849
- **Pages:** 7

## Headnote

Whether the court below erred in law in
allowing the application for substitution as the
delay
condonation
application
was
filed
subsequently and not along with substitution
application.

Head Notes
The Code of Civil Procedure, 1908Section 115, Order VI Rule 17, Order
XXII Rule 4, Order XLI Rule 3-A; The
Limitation Act-1963-Article 120, Section
3- While interpreting the provisions of
Sub-Rule (1) of Rule 3A of Order XLI
C.P.C. where the statute required for
filing an application for condonation of
delay,
the
Supreme
Court
has
interpreted the same not to be fatal.
Neither Order XXII C.P.C. nor Limitation
Act provides that application under
Section 5 of Limitation Act must be filed
along with application for substitution-
The limitation for filing an application
for setting aside the abatement is 60
days from the date of abatement which
has not expired in the present case. Not
filing the separate application for setting
aside abatement will not be fatal and
prayer for setting aside abatement is
implicit
in
the
application
for
substitution- Revision dismissed.

Held-
Substitution
application
has
been
correctly allowed and the delay has correctly
been condoned by the trial court.(Para 16,
20 & 26)
Revision allowed. (E-15)

Case Law Cited
Ishwari and others v. D.D.C and others
reported in 1990 RD 175; Dr. Sakeel Ahmed
v. Smt. Sabiha Khatoon reported in 1990 RD
37; Mithailal Dalsangar Singh and Others v.
Annabai Devram Kini and Ors. reported in
(2003) 10 SCC 691; Shakuntala Devi v.
Banwari Lal and Ors. reported in AIR 1977 All
551; State of Madhya Pradesh and another
Vs. Pradeep Kumar and another; reported in
(2000) 7 SCC 372; Surendra Mani v. State of
U.P. and 5 others reported in 2025 (1) ADJ
780

List of Acts
The Code of Civil Procedure, 1908-; The
Limitation Act-1963

List of Keywords
Order XXII Rule 4; Order XLI Rule 3-A;
Statute requires for filing an application for
condonation of delay; Not to be fatal; Prayer
for setting aside abatement is implicit; Section
5 Limitation Act.

Case Arising From
Order dated 12.12.2024 passed by the trial
court i.e. Civil Judge (Senior Division), F.T.C.,
District Bareilly in O.S. No. 348 of 2019 allowing
the application filed by the plaintiff in the suit
for substitution for substituting the heirs of
deceased defendant and for amendment in the
plaint which necessitated because of the death
of sole defendant.

Appearances for Parties
Counsel for Petitioner : Vishnu Kumar Nagaich
Counsel for Respondent :

## Text

1426 INDIAN LAW REPORTS ALLAHABAD SERIES
rejecting the objections filed by the
petitioner. Hence the present writ petition
fails and is dismissed.
----------
(2025) 11 ILRA 1426
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.11.2025

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Civil Revision No. 77 of 2025

Deepak Prasad & Ors. ...Revisionists
Versus
Ajay Prasad ...Opposite Party

Counsel for the Revisionists:
Vishnu Kumar Nagaich

Counsel for the Opposite Party:

Issue for Consideration
Whether the court below erred in law in
allowing the application for substitution as the
delay
condonation
application
was
filed
subsequently and not along with substitution
application.

Head Notes
The Code of Civil Procedure, 1908Section 115, Order VI Rule 17, Order
XXII Rule 4, Order XLI Rule 3-A; The
Limitation Act-1963-Article 120, Section
3- While interpreting the provisions of
Sub-Rule (1) of Rule 3A of Order XLI
C.P.C. where the statute required for
filing an application for condonation of
delay,
the
Supreme
Court
has
interpreted the same not to be fatal.
Neither Order XXII C.P.C. nor Limitation
Act provides that application under
Section 5 of Limitation Act must be filed
along with application for substitution-
The limitation for filing an application
for setting aside the abatement is 60
days from the date of abatement which
has not expired in the present case. Not
filing the separate application for setting
aside abatement will not be fatal and
prayer for setting aside abatement is
implicit
in
the
application
for
substitution- Revision dismissed.

Held-
Substitution
application
has
been
correctly allowed and the delay has correctly
been condoned by the trial court.(Para 16,
20 & 26)
Revision allowed. (E-15)

Case Law Cited
Ishwari and others v. D.D.C and others
reported in 1990 RD 175; Dr. Sakeel Ahmed
v. Smt. Sabiha Khatoon reported in 1990 RD
37; Mithailal Dalsangar Singh and Others v.
Annabai Devram Kini and Ors. reported in
(2003) 10 SCC 691; Shakuntala Devi v.
Banwari Lal and Ors. reported in AIR 1977 All
551; State of Madhya Pradesh and another
Vs. Pradeep Kumar and another; reported in
(2000) 7 SCC 372; Surendra Mani v. State of
U.P. and 5 others reported in 2025 (1) ADJ
780

List of Acts
The Code of Civil Procedure, 1908-; The
Limitation Act-1963

List of Keywords
Order XXII Rule 4; Order XLI Rule 3-A;
Statute requires for filing an application for
condonation of delay; Not to be fatal; Prayer
for setting aside abatement is implicit; Section
5 Limitation Act.

Case Arising From
Order dated 12.12.2024 passed by the trial
court i.e. Civil Judge (Senior Division), F.T.C.,
District Bareilly in O.S. No. 348 of 2019 allowing
the application filed by the plaintiff in the suit
for substitution for substituting the heirs of
deceased defendant and for amendment in the
plaint which necessitated because of the death
of sole defendant.

Appearances for Parties
Counsel for Petitioner : Vishnu Kumar Nagaich
Counsel for Respondent :

(Delivered by Hon'ble Manish Kumar
Nigam, J.)
11 All. Deepak Prasad & Ors. Vs. Ajay Prasad
1427

1. Heard learned counsel for the
revisionist and perused the record.

2. This revision has been filed against
the order dated 12.12.2024 passed by the
trial
court
i.e.
Civil
Judge
(Senior
Division), F.T.C., District Bareilly in O.S.
No. 348 of 2019 allowing the application
filed by the plaintiff in the suit for
substitution for substituting the heirs of
deceased defendant and for amendment in
the plaint which necessitated because of the
death of sole defendant.

3. By order dated 24.04.2025, notice
was issued to the respondent. Steps were
taken by the revisionist and service upon
the respondent was found sufficient by
order dated 2.09.2025. Two weeks time
was granted by order dated 02.09.2025 to
the respondent to file counter affidavit.
However, neither counter affidavit filed by
the respondent nor anybody has appeared
on behalf of respondent. Hence the matter
is taken in his absence.

4. Brief facts of the case are that O.S.
No. 348 of 2019 was instituted by the
plaintiff/respondent
for
the
relief
of
mandatory injunction in favour of the
plaintiff
and
against
sole
defendant
directing the defendant to deliver the
possession of the house in dispute,
boundaries of which given in the plaint
itself. During pendency of the suit, sole
defendant
Deepak
Prasad
died
on
12.10.2022 leaving behind revisionists as
his heirs and legal representatives. On
16.03.2023, the substitution application
was filed by the power of attorney holder
of the plaintiff under Order XXII Rule 4
C.P.C. for substituting the heirs of deceased
defendant. The application was also filed
under Order VI Rule 17 C.P.C. for
necessary amendment necessitated by the
death of deceased defendant. On objection
being filed by the heirs of deceased
defendant, an application for condonation
of delay filed on 16.10.2023 by the
plaintiff/respondent. The revisionist filed
their objection to delay condonation
application on 30.04.2024. By the order
impugned, i.e. order dated 12.12.2024, the
delay was condoned and the substitution
application
as
well
as
prayer
for
amendment was allowed. Hence, the
present revision.

5. It has been contended by learned
counsel for the revisionists that the
substitution application was filed with
delay and no application was filed along
with
substitution
application
for
condonation of delay. The application for
condonation
of
delay
was
filed
subsequently on 16.10.2023, and therefore,
the court below erred in law in allowing the
application for substitution as the delay
condonation
application
was
filed
subsequently
and
not
along
with
substitution application.

6. It has been further contended by
learned counsel for the revisionist that after
the expiry of period of 90 days from the
date of death of defendant, the suit abated
and no application was filed by the
plaintiff/respondent for setting-aside the
abatement. The substitution application
cannot be allowed unless the abatement is
set-aside.

7. It has been further contended by
learned counsel for the revisionists that the
objections taken by the revisionists before
the court below to the application filed for
condonation of delay has not been dealt
with by the court below and therefore, the
order passed by the court below is bad in
law.
1428 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Before considering the submissions
made
by
learned
counsel
for
the
revisionists it would be appropriate to
consider the provisions of the Limitation
Act.

9. Section 3 of the Limitation Act
provides bar of limitation. Section 3 of the
Limitation Act, 1963 is quoted as under:-

"3. Bar of limitation.-(1)Subject
to the provisions contained in sections 4 to
24 (inclusive), every suit instituted, appeal
preferred, and application made after the
prescribed period shall be dismissed,
although limitation has not been set up as a
defence."

10. Section 5 of the Limitation Act
provides for extension of prescribed period
in certain cases and the same is quoted as
under:-

"5.
Extension
of prescribed
period in certain cases.- Any appeal or any
application, other than an application
under any of the provisions of Order XXI of
the Code of Civil Procedure, 1908, may be
admitted after the prescribed period if the
appellant or the applicant satisfies the
court that he had sufficient cause for not
preferring the appeal or making the
application within such period.

Explanation.-The fact that the
appellant or the applicant was misled by
any order, practice or judgment of the High
Court in ascertaining or computing the
prescribed period may be sufficient cause
within the meaning of this section."

11. Section 5 of Limitation Act
provides that an appeal or an application
may be admitted after the prescribed period
if the appellant or the applicant satisfies the
Court that he had sufficient cause for not
preferring the appeal or making the
application within such period. Section 5 in
fact has been incorporated to save those
innocent
litigants
who
either
under
misapprehension or miscalculation, under
bona fide belief or because of the inevitable
circumstances
could
not
bring
the
proceedings before the Court within
limitation. It is the power which is given to
the Court to condone delay and extend the
limitation. It is for the Court to satisfy itself
that the sufficient cause exists or not to
condone the delay. If the Court on the facts
presented before it comes to the conclusion
that the delay deserves to be condoned then
the Court is duty bound to save the party
from unnecessary sufferances and would
permit the appellant to go into the arena of
their legal rights of the matter after
removing the hurdle of limitation.

12. So far as the contention of the
learned counsel for the revisionist that
application for condonation of delay filed
under Section 5 of Limitation Act must
accompany the application for substitution
and in case the application is filed
subsequent to the filing of the application
for substitution, the same cannot be
considered and allowed, is misconceived.

13. This Court in case of Surendra
Mani v. State of U.P. and 5 others
reported in 2025 (1) ADJ 780 has held in
paragraph no. 24 as under:

"24.In view of the law laid down
by Honble Supreme Court, this Court and
various other High Courts, I am also of the
opinion that for condonation of delay under
Section 5 of the Limitation Act, a formal
application would not be required, if the
facts presented before the court satisfies
the judicial consciousness of the Court that
11 All. Deepak Prasad & Ors. Vs. Ajay Prasad
1429
the applicant before it was prevented for
sufficient cause in bringing the proceedings
well within limitation. In case, instead of
moving
a
formal
application
for
condonation of delay, averments has been
made by a party relating to sufficient cause
for not initiating the proceedings well
within time in the application or memo of
appeal or revision supported by an
affidavit with a prayer made therein for
condonation of delay will not be fatal for
want
of
separate
application
for
condonation of delay. If the Court is of the
opinion
that
in
absence
of
formal
application, the delay cannot be condoned
then, it is always the duty of the Court to
give an opportunity to the appellant before
it to move an application explaining the
cause for delay and seek condonation
under Section 5 of the Limitation Act. The
applicant must get proper opportunity to
explain the circumstances which prevented
it from drawing proceedings well within
time...."

14. Order 41 Rule 3-A of the Code of
Civil Procedure as added in 1976 provides
as under:-

"3A. Application for condonation
of delay. (1)When an appeal is presented
after the expiry of the period of limitation
specified therefor, it shall be accompanied
by an application supported by affidavit
setting forth the facts on which the
appellant relies to satisfy the Court that he
had sufficient cause for not preferring the
appeal within such period.

(2)If the Court sees no reason to
reject the application without the issue of a
notice to the respondent, notice thereof
shall be issued to the respondent and the
matter shall be finally decided by the Court
before it proceeds to deal with the appeal
under rule 11 or rule 13, as the case may
be.

(3)Where an application has been
made under sub-rule (1) the Court shall not
make an order for the stay of execution of
the decree against which the appeal is
proposed to be filed so long as the Court
does not, after hearing under rule 11,
decide to hear the appeal."

15. The Supreme Court in Case of
State of Madhya Pradesh and another
Vs.
Pradeep
Kumar
and
another;
reported in (2000) 7 SCC 372 while
interpreting the provisions of sub-Rule 1 of
Rule 3-A of Order 41 C.P.C. held that
filing of memorandum of appeal without
application for condonation of delay will
not be fatal. Unintentional lapse of a
litigant should not result in closing of doors
of the Court permanently. The word
shall in Rule 3-A (1) does not foreclose
the chance to rectify a mistake and Court is
within
jurisdiction
in
returning
the
memorandum of appeal to the party
concerned as defective. Such party can then
cure, the defect and present the appeal
again. The paragraph No. 11 of the
judgment in case of State of Madhya
Pradesh Vs. Pradeep Kumar (supra) are
quoted as under:-

"11. No doubt sub-rule (1) of
Rule 3-A has used the word "shall". It was
contended that employment of the word
"shall" would clearly indicate that the
requirement is peremptory in tone. But
such peremptoriness does not foreclose a
chance for the appellant to rectify the
mistake, either on his own or being pointed
out by the court. The word "shall" in the
context
need
be
interpreted
as
an
obligation cast on the appellant. Why
should a more restrictive interpretation be
1430 INDIAN LAW REPORTS ALLAHABAD SERIES
placed on the sub-rule? The rule cannot be
interpreted very harshly and make the noncompliance punitive to an appellant. It can
happen that due to some mistake or lapse
an appellant may omit to file the
application (explaining the delay) along
with the appeal.'

16.
Thus
while
interpreting
the
provisions of Sub-Rule (1) of Rule 3A of
Order XLI C.P.C. where the statute
required for filing an application for
condonation of delay, the Supreme Court
has interpreted the same not to be fatal.
Neither Order XXII C.P.C. nor Limitation
Act provides that application under Section
5 of Limitation Act must be filed along
with application for substitution.

17. So far as the submission of learned
counsel for the revisionist that after the
expiry of period of 90 days as provided by
Article 120 of the Limitation Act, the suit
abated and unless an application is made
for setting aside the abatement, application
for substitution cannot be allowed, is also
misconceived.

18. This Court in case of Shakuntala
Devi v. Banwari Lal and Ors. reported in
AIR 1977 All 551, held that an application
for substitution could be treated as an
application for setting aside the abatement.

19. The Supreme Court in case of
Mithailal Dalsangar Singh and Others v.
Annabai Devram Kini and Ors. reported
in (2003) 10 SCC 691, in paragraph no. 8,
9 & 10 has held as under:

"8. In as much as the abatement
results in denial of hearing on the merits of
the case, the provision of abatement has to be
construed strictly. On the other hand, the
prayer for setting aside an abatement and the
dismissal consequent upon an abatement,
have to be considered liberally. A simple
prayer for bringing the legal representatives
on record without specifically praying for
setting aside of an abatement may in
substance be construed as a prayer for setting
aside abatement. So also a prayer for setting
aside abatement as regard one of the plaintiffs
can be construed as a prayer for setting aside
the abatement of the suit in its entirety.
Abatement of suit for failure to move an
application
for
bringing
the
legal
representatives
on
record
within
the
prescribed period of limitation is automatic
and a specific order dismissing the suit as
abated is not called for. Once the suit has
abated as a matter of law, though there may
not have been passed on record a specific
order dismissing the suit as abateed, yet the
legal representatives proposing to be brought
on record or any other applicant proposing to
bring the legal representatives of the deceased
party on record would seek the setting aside
of an abatement. A prayer for bringing the
legal representatives on record, if allowed,
would have the effect of setting aside the
abatement as the relief of setting aside
abatement though not asked for in so many
words is in effect being actually asked for and
is necessarily implied. Too technical or
pedantic an approach in such cases is not
called for.

9. The courts have to adopt a
justice oriented approach dictated by the
upper most consideration that ordinarily a
litigant ought not to be denied an opportunity
of having a lis determined on merits unless he
has, by gross negligence, deliberate inaction
or something akin to misconduct, disentitled
himself from seeking the indulgence of the
court.....

10. ........For a period of ninety
days from the date of death of any party the
11 All. Deepak Prasad & Ors. Vs. Ajay Prasad
1431
suit remains in a state of suspended
animation. And then it abates. The
converse would also logically follow. Once,
the
prayer
made
by
the
legal
representatives of the deceased plaintiff for
setting aside the abatement as regards the
deceased plaintiff was allowed, and the
legal representatives of the deceased
plaintiff came on record, the constitution of
the suit was rendered good; it revived and
the abatement of the suit would be deemed
to have been set aside in its entirety even
though there was no specific prayer made
and no specific order of the Court passed
in that behalf."

20. The limitation for filing an
application for setting aside the abatement
is 60 days from the date of abatement
which has not expired in the present case.
Not filing the separate application for
setting aside abatement will not be fatal and
prayer for setting aside abatement is
implicit in the application for substitution.

21. The last submission made by
learned counsel for the revisionist that the
objection filed by the revisionists to the
application
under
Section
5
of
the
Limitation Act were not dealt with by the
court below and the order does not record
any reason for allowing the substitution
application, is also of no avail as the same
are not enough for setting aside the
impugned order, in exercise of revisional
jurisdiction unless failure of justice or
irreparable injury has been established as
required by second proviso to Clause (ii) of
Section 115 C.P.C. Application has been
allowed subject to payment of cost of Rs.
500/- to the revisionist.

22. This Court in case of Dr. Sakeel
Ahmed v. Smt. Sabiha Khatoon reported
in 1990 RD 37, has held as under:

"the order, no doubt, does not
indicate the reasons for allowing the
restoration application. But, that is not
enough for setting aside the order. As
required by clause (ii) of the second
proviso to Section 115 of the Code, as
applicable in the State of Uttar Pradesh, it
has to be established that there would be a
failure of justice, or the aggrieved party
shall suffer and irreparable injury if the
impugned order is allowed to stand".

23. This Court having power coextensive with the powers of the court
below to satisfy itself about the sufficiency
of the cause for not filing the application
within
time,
the
delay
condonation
application has been examined by me and
from the perusal of the same it cannot be
said that there is a deliberate delay on the
part of the plaintiff/respondent in filing the
substitution application. In the delay
condonation application, it has been stated
that Pairokar of the plaintiff went out of
station who was the power of attorney on
behalf of plaintiff Ajay Prasad and
therefore, the application could not be filed
within the limitation period.

24. Further in case of Ishwari and
others v. D.D.C and others reported in 1990
RD 175, this Court has held as under:

"Matter may be viewed from
another
angle.
After
the
C.P.C.
(Amendment) Act, 1976 Rule 10-A has been
added to Order XXII (Twenty Two) which
provides that now it is the duty of the
defendant, respondent or his counsel to
bring this fact to the notice of the court that
a particular party is dead. Thereafter, the
court shall cause notice to be given to the
other party. Special provision has been
made that the contract between the pleader
and the deceased party shall be deemed to
1432 INDIAN LAW REPORTS ALLAHABAD SERIES
subsist. This new provision has been
inserted with a view, that, just delay in
making substitution application within 90
days or case other wise abated within
another 60 days may not be taken normally
as defence by the counsel for the otherwise.
In this view of the matter intention of the
legislature is manifest that in substitution
matters much emphasis need not be given
on the delay cause in moving the
substitution application. The court may
make a realistic approach in the matter and
see that substantial justice is done between
the parties and matter does not drag on
unnecessarily.'

25. In the present case, I am of the
view that the substitution application has
been correctly allowed and the delay has
correctly been condoned by the trial court.

26. In view of the above, no illegality
found in the order impugned and revision is
dismissed.

27. No order as to costs.
----------
(2025) 11 ILRA 1432
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.11.2025

BEFORE

THE HON'BLE ABDUL MOIN, J.
THE HON'BLE MRS. BABITA RANI, J.

Criminal Misc. Writ Petition No. 9586 of 2025

Subash Chandra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sharad Pathak, Abhijeet Mishra

Counsel for the Respondents:
G.A., Gaurav Mehrotra

Issue for Consideration
Whether the First Information Report dated
19.09.2025, registered under Sections 13(1)(b)
and 13(2) of the Prevention of Corruption Act,
1988, against the petitioner, an officer of a cooperative bank, was liable to be quashed on the
grounds that
(i) the petitioner had been exonerated in
departmental proceedings,
(ii) he was not a "public servant" within the
meaning of Section 2 of the Act, 1988, and
(iii) the F.I.R. was alleged to be malafide.

Headnotes
Prevention of Corruption Act, 1988 - ss.
2(c), 13(1)(b), 13(2) - Uttar Pradesh Cooperative Societies Act, 1965 - ss. 31-A,
124 - Public servant - Officer of cooperative
bank
-
Departmental
exoneration - Effect - Malice - Quashing
of
F.I.R.
-
Writ
jurisdiction
-
No
interference.

Held:

An officer of a co-operative bank which is
controlled and aided by the State Government
falls within the ambit of "public servant" as
defined under Section 2(c)(iii) of the Prevention
of Corruption Act, 1988, particularly in view of
Sections 31-A and 124 of the Uttar Pradesh Cooperative Societies Act, 1965, which deem
officers of co-operative societies to be public
servants. The petitioner, admittedly being an
officer of such a co-operative bank, is thus
covered by the Act, 1988. [Paras 18-33, 39]

Exoneration of the petitioner in departmental
proceedings did not operate as a bar to lodging
of a criminal case under the Act, 1988, where
no enquiry was in fact conducted by the inquiry
officer on the charge of disproportionate assets,
the inquiry officer having specifically recorded
that he was not competent to examine such
charge. Consequently, there was no finding in
departmental proceedings on the issue of
disproportionate assets. [Paras 42-46]
The Court held that the judgments relied upon
by the petitioner on the effect of departmental
exoneration had no applicability to the facts of