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Case Analysis Smt Johra Begam Alias Johra Khatoon vs State of UP & Ors 2026 AHC-LKO 12168

Synopsis

This judgment, delivered by a Single Judge of the Allahabad High Court (Lucknow Bench), deals with a writ petition challenging an appellate court's order that rejected a substitution application and dismissed an appeal as abated. The petitioner had filed a civil appeal against a sole respondent, Ishhaq Ali, only to discover later that the respondent had died before the appeal was filed. The lower appellate court treated the matter as one of delayed substitution under Order XXII Rule 4 CPC and dismissed the application, holding the appeal abated. The High Court, while agreeing that the substitution application was not maintainable, corrected the lower court's legal reasoning. It held that an appeal filed against a dead person is a "nullity" from its inception, not a proceeding that can "abate." The proper remedy is withdrawal of the nullity appeal under Order XXIII Rule 1(3) CPC, treating the defect as a "formal defect," with liberty to file a fresh appeal impleading the correct legal heirs.

1. Heading for the Judgment

In the High Court of Judicature at Allahabad, Lucknow Bench

WRIT - C No. - 383 of 2026

Smt. Johra Begam Alias Johra Khatoon ....Petitioner
versus
State of U.P. & Ors. ....Respondents

Coram: Hon'ble Mr. Justice Amitabh Kumar Rai

Date of Decision: 17th FEBRUARY, 2026

2. Legal Framework

This judgment operates within the following procedural and statutory framework:

The Code of Civil Procedure, 1908 (CPC): The entire controversy centers around the correct interpretation and application of procedural rules.
Order XXII Rule 4: Deals with the procedure in case of the death of one of several defendants or the sole defendant. It provides for bringing the legal representatives of a deceased defendant on record. Crucially, this rule applies when the death occurs during the pendency of the suit or appeal.
Order I Rule 10: Grants the court power to strike out or add parties at any stage of the proceedings, to determine the real questions in controversy.
Order XXIII Rule 1(3): Allows a plaintiff/appellant to withdraw a suit/appeal with liberty to institute a fresh one, if the court is satisfied that the suit/appeal must fail by reason of some "formal defect" or that there are "sufficient grounds" for allowing such withdrawal.
Sections 151 and 153: These are the inherent powers of the court and the general power to amend defects, respectively.
The Limitation Act, 1963:
Article 120: Prescribes the limitation period for filing an application for substitution of legal representatives.
Section 5: Provides for condonation of delay in filing an appeal or application if sufficient cause is shown.
Principle of Nullity: A foundational legal principle that a proceeding filed against a person who was dead at the time of institution is a nullity and void ab initio, as a dead person has no legal existence and cannot be a party to a lis.

Related Precedents Cited and Relied Upon:

Indana International Ltd. v. Santana Miguel Fernandes, 2007 SCC OnLine Bom 381: (Bombay High Court) - Held that filing a suit against a dead person is a nullity, and withdrawal of such a suit should be viewed as a request to withdraw the "filing of the suit," which is a formal defect.
Naseem Hushain v. Mahender Kaur, 2015 SCC OnLine P&H 8414: (Punjab and Haryana High Court) - Held that when a defendant was dead at the time of filing the suit, the trial court should permit the plaintiff to withdraw the suit with permission to file a fresh one.
C. Muttu v. Bharath Match Works, Sivakasi, 1963 SCC OnLine Kar 88: (Karnataka High Court) - Held that a suit filed against a sole dead defendant is a nullity, and no application under Order I Rule 10 or Order XXII Rule 4 is maintainable. It also quoted the Supreme Court's observations in Hira Lal v. Kalinath, AIR 1962 SC 199 supporting the view that a suit against a dead person is an inherent lack of jurisdiction.
V. Rajendran v. Annasamy Pandian, (2017) 5 SCC 63: (Supreme Court) - Clarified the meaning of "formal defect" under Order XXIII Rule 1(3)(a), holding that it includes defects like misjoinder of parties, improper valuation, or failure to disclose a cause of action. Such a defect goes to the root of the matter and permits withdrawal with liberty to file afresh.

3. Basic Relevant Facts of the Case

Background Dispute: The petitioner, Smt. Johra Begam, claimed to be the successor to agricultural land. One Ishhaq Ali claimed title based on a fraudulent will deed.
Trial Court Proceedings: The petitioner filed a suit to cancel the will, which was initially decreed ex-parte, then restored, and eventually dismissed on 22.11.2024.
Filing of Appeal: Aggrieved, the petitioner filed Civil Appeal No. 54 of 2024 on 18.12.2024, impleading Ishhaq Ali as the sole respondent.
The Crucial Fact: Unknown to the petitioner, Ishhaq Ali had already died on 10.07.2023, which was more than a year before the appeal was filed.
Application Before Appellate Court: Upon learning of Ishhaq Ali's pre-filing death, the petitioner filed an application under Order XXII Rule 4 CPC to substitute his legal heirs, along with an application for condonation of delay.
Impugned Order: The District Judge, Gonda, rejected the condonation of delay application and, consequently, the substitution application, holding that the appeal had abated and was consigned to record.

4. Issues in the Judgment

The court framed and addressed the following primary issues:

Maintainability of Substitution Application: Is an application under Order XXII Rule 4 CPC maintainable when the sole respondent/defendant was already dead at the time of filing the appeal/suit?
Concept of Abatement: Can a suit or appeal filed against a dead person be said to have "abated," or is it a nullity from its inception?
Proper Remedy: What is the correct procedural course of action for an appellant who has, in ignorance, filed an appeal against a sole dead respondent?
Nature of the Defect: Does the impleadment of a dead person as a party constitute a "formal defect" within the meaning of Order XXIII Rule 1(3) CPC?

5. Ratio Decidendi (The Reasoning of the Court)

The court's reasoning is a masterclass in procedural law, distinguishing between different rules and their precise applicability.

Order XXII Rule 4 is Inapplicable: The court held that Order XXII Rule 4 CPC applies only when a party dies during the pendency of the proceedings. Since Ishhaq Ali died before the appeal was filed, there was no "pending proceeding" in which to substitute anyone. Therefore, the application under this rule was not maintainable at all. The lower court's focus on delay was a red herring, as the application itself was legally incompetent.
Suit/Appeal Against a Dead Person is a Nullity: Citing C. Muttu and the Supreme Court's observations in Hira Lal v. Kalinath, the court reaffirmed the fundamental principle that a proceeding instituted against a person who was dead at the time of filing is a nullity and void ab initio. A dead person has no legal existence, and a court has no jurisdiction to entertain a proceeding against a non-existent entity.
Consequence: No Question of Abatement: The court clarified a critical legal distinction. "Abatement" occurs when a party to a validly instituted proceeding dies and their legal representatives are not brought on record within the time prescribed. If the proceeding itself was a nullity from the start, there is nothing that can "abate." The lower court's finding that the appeal "abated" was therefore incorrect in law.
The Correct Remedy: Withdrawal under Order XXIII Rule 1(3): The court held that the only proper course is to treat the entire proceeding as suffering from a "formal defect" —specifically, a misjoinder of a necessary party (or rather, the impleadment of a non-existent party). The appellant should file an application under Order XXIII Rule 1(3) CPC to withdraw the nullity appeal with the express liberty to file a fresh appeal impleading the correct legal heirs.
"Formal Defect" Defined: Relying on V. Rajendran, the court clarified that a "formal defect" is a defect of form prescribed by rules of procedure, such as misjoinder of parties, want of notice, or improper valuation. Impleading a dead person is a fundamental procedural mistake that fits this definition, as it goes to the root of the court's jurisdiction over the party.

6. New Legal Framework Established

This judgment does not establish a new legal principle but serves as an authoritative restatement and clarification of existing procedural law, synthesizing it into a clear, practical guide for litigants and lower courts. Its significant contributions are:

Clear Dichotomy Between "Death During Pendency" and "Death Before Institution": The judgment provides a bright-line rule:
If death occurs during proceedings → Use Order XXII Rule 4 (Substitution).
If death occurred before institution → The proceeding is a nullity. Do not use Order XXII Rule 4. Instead, seek withdrawal under Order XXIII Rule 1(3).
Clarification on "Abatement": It definitively states that a proceeding filed against a dead person cannot "abate." Abatement is a concept applicable only to validly instituted proceedings. Lower courts are now on notice that declaring such a nullity proceeding as "abated" is a legal error.
Practical Relief for Bona Fide Litigants: By categorizing the mistake as a "formal defect," the judgment provides a lifeline to litigants who make an innocent, bona fide error. It prevents their substantive rights from being extinguished purely due to a procedural mistake, provided they act promptly to correct it by withdrawing and refiling.

7. Examination and Analysis by the Court

The court's analysis was systematic and pedagogical.

Factual Foundation: The court first established the undisputed fact that the sole respondent was dead before the appeal was filed.
Statutory Interpretation: It then examined the text of Order XXII Rule 4 and concluded it was designed for a different factual scenario (death during pendency). The language of the rule implicitly requires a valid proceeding to be in existence.
Application of Precedent: The court drew upon a rich body of case law from various High Courts and the Supreme Court to build its legal framework. It quoted extensively from C. Muttu, Indana International, and V. Rajendran to show the consistency of the legal position across jurisdictions.
Correcting the Lower Court: The court identified the precise legal error of the District Judge—applying the concept of "abatement" to a nullity proceeding. It then provided the correct legal framework (withdrawal under Order XXIII) to rectify the situation.
Balancing Justice and Procedure: In its final directions, the court demonstrated a commitment to the principle that "procedure is meant only to facilitate the administration of justice and not to defeat it." While upholding the technical legal position (nullity), it provided a clear, time-bound path for the petitioner to get her appeal heard on its merits.

8. Critical Analysis and Final Outcome

Critical Analysis:

This judgment is an exemplary display of the corrective and instructive role of a High Court in writ jurisdiction.

Strengths: The judgment's primary strength is its doctrinal precision. It meticulously distinguishes between "nullity" and "abatement," two concepts often confused. By doing so, it provides much-needed clarity to the bar and the bench. The compilation of precedents is thorough and persuasive. The final order is both legally sound and equitable, offering a pragmatic solution to the petitioner's dilemma without setting a bad precedent.
Legality: The judgment is legally unassailable. It correctly interprets the CPC and applies binding principles of law regarding the jurisdiction of courts.
Practical Impact: This decision will serve as a valuable guide for countless litigants who, in ignorance, file proceedings against deceased persons. It prevents such procedural errors from becoming fatal to a genuine claim. It also acts as a check on lower courts that mechanically dismiss such matters as "abated" without considering the nuanced legal position.

Final Outcome:

The writ petition was disposed of with the following directions:

Order Partly Upheld: The impugned order dated 10.12.2025, insofar as it rejected the substitution application, was held to require no interference, as the application itself was not maintainable.
Error Corrected: The finding of the lower court that the appeal had "abated" was declared to be incorrect. The court clarified the appeal was a nullity from its inception.
Liberty to Withdraw: The petitioner was granted liberty to file an application under Order XXIII Rule 1(3) CPC before the appellate court for withdrawal of the appeal, with permission to file a fresh appeal impleading the legal heirs of the deceased respondent.
Time-Bound Direction: The petitioner was directed to file such an application within one month from the date of the order, and the appellate court was directed to consider it on its own merits.
Costs: No order as to costs