The Allahabad High Court has dismissed a petition challenging the substitution of the legal heirs of a deceased plaintiff in an eviction and damages suit. Justice Dr. Yogendra Kumar Srivastava held that the application was filed within the limitation period applicable to the proceedings and that the suit had not abated.
Background
The dispute arose from SCC Suit No. 41 of 2016, instituted by Bundu against Mohd. Afaq concerning eviction and recovery of damages for a shop. After Afaq’s death, his legal representatives were brought on record. The original plaintiff, Bundu, subsequently died on May 23, 2023.
His legal representatives applied for substitution on July 18, 2023. The petitioners, Zakir and four others, opposed the application, arguing that Rule 25 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 required substitution within one month. They contended that the suit had consequently abated.
The Small Causes Court, Bijnor, allowed the application on April 26, 2024. The revisional court dismissed the challenge on July 28, 2026, prompting the petitioners to approach the High Court.
The High Court examined whether Rule 25 applied to the suit. It noted that the record did not establish that the premises were governed by the 1972 Act and that the plaint described the building as newly constructed.
The Court observed:
“The mere fact that the dispute is between a landlord and a tenant, or that the matter is pending before the Judge, Small Causes Court, does not, by itself, render the procedural provisions contained in the Rules framed under the 1972 Act applicable to the suit.”
It further explained that Section 17 of the Provincial Small Cause Courts Act, 1887, permits the application of the Code of Civil Procedure, subject to statutory exclusions. Order XXII, which governs substitution of legal representatives following a party’s death, is not among the excluded provisions.
Article 120 of the Limitation Act, 1963, prescribes 90 days for bringing a deceased party’s legal representatives on record. The Court noted:
“The application was thus made within the period prescribed under the CPC read with the Limitation Act.”
Since the application was filed within 90 days, the Court held that abatement had not occurred and no separate application to set aside abatement was necessary.
Justice Dr. Yogendra Kumar Srivastava found no jurisdictional error or illegality in the orders passed by the lower courts and dismissed the petition under Article 227 of the Constitution.
The Court clarified that the underlying dispute remained open for adjudication in accordance with law.
Case Details
- Case Title: Zakir and 4 Others v. Bundu and 5 Others
- Case Number: Matters Under Article 227 No. 11742 of 2026
- Judge: Justice Dr. Yogendra Kumar Srivastava
- Decision Date: October 7, 2026
