Order XXII Rule 9(3) CPC | Application Under Section 5 Limitation Act Must Be Filed Separately To Condonate Delay In Setting Aside Abatement: Supreme Court

"Procedure, as is trite, is the handmaiden of justice, but in law, it cannot be treated as a lowly servant and ignored altogether; especially if substantial rights are involved, since it makes justice delivery even handed." Supreme Court of India, in an important judgment, clarified that an application for the condonation of delay under Section 5 of the Limitation Act must be filed as a separate petition when seeking to set aside an abatement under Order XXII Rule 9 of the Code of Civil Procedure, 1908.

A bench of Justices J.B. Pardiwala and K. Vinod Chandran emphasized that while procedural laws are meant to facilitate justice, they cannot be disregarded, particularly when the delay involves a substantial period and affects the acquired rights of the opposing party.

Legal Necessity of Procedural Compliance

The Court noted that legal representatives (LRs) have an inherent right to come on record within 90 days of a party's death. However, if this period lapses, the ensuing 60-day window for filing an application to set aside abatement necessitates a demonstration of "sufficient cause." The bench asserted that where the delay exceeds the prescribed period, the law mandates a formal, separate application to condone such delay, supported by an affidavit that explains the default.

Failure to Provide Adequate Grounds

In the present matter, the appellant sought to set aside an abatement after a delay of 501 days, citing only the "pre-occupation" of their engaged counsel. The Court rejected this as a cryptic and insufficient explanation. It held that the absence of a formal application for condonation of delay, combined with vague assertions of professional pre-occupation, justified the lower court’s rejection of the prayer, as the law explicitly favors the diligent over the indolent.

"The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. Once a valuable right has accrued in favour of one party... it will be unreasonable to take away that right on the mere asking of the applicant."

Strict Scrutiny of 'Sufficient Cause'

Referring to the principle established in Balwant Singh (Dead) v. Jagdish Singh, the bench reiterated that a liberal construction of "sufficient cause" cannot be equated with doing injustice to the opposite party. The Court observed that Section 5 of the Limitation Act cannot be applied in a vacuum. It requires a rigorous assessment of whether the applicant acted with due care and attention, ensuring that the opposing party's substantive rights, which accrue through the passage of time, are not arbitrarily stripped away.

Rejection of Negligent Conduct

The judges emphasized that the court is not bound to accept any and all allegations provided by an applicant to explain their default. Citing Union of India v. Ram Charan (Deceased), the court maintained that it must scrutinize the merits of the evidence provided to explain a delay. Indulgence is not a matter of course, and the court must be satisfied that the delay was not a direct result of the party's own negligence or inaction.

Despite the procedural deficiencies and the lack of a proper application in the lower forums, the Supreme Court exercised its discretionary power upon finding that the appellants, who were daughters of the deceased, were unaware of the suit due to a strained relationship. Having learned of the legal proceedings only upon receiving a government notice, they approached the court with due diligence thereafter. Consequently, while disagreeing with the procedural casualness of the High Court, the bench upheld the restoration of the appeal subject to the payment of Rs. 25,000 as costs to the respondent.

Date of Decision: 17 July 2026