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Rajasthan High Court · body

1999 DIGILAW 27 (RAJ)

Mewar Kalal Nyati Sangh v. Jaivi

1999-01-06

AMRESH KUMAR SINGH

body1999
Honble SINGH, J.–This second appeal is directed against the judgment and decree passed by the learned Additional District Judge No.1, Jodhpur in civil appeal no. 13/95 whereby the learned Additional District Judge No.1, dismissed the appeal and confirmed the decree dated 23rd December, 94 passed by the learned Additional Civil Judge (Jr. Division) No.1, Jodhpur in civil suit no. 92/93. (2). The appellant filed the civil suit no. 892/93 against the defendant Ismail Khan for abatement on recovery of arrears of rent. During the pendency of the suit, the defendant Ismail Khan expired on 5.2.94. The information about the death of the defendant Ismail Khan was given to the trial court by the learned counsel for Ismail Khan on 3rd March, 94 when the case was taken up for hearing. On 3.3.94, the plaintiff-appellants counsel was present and he came to know about the death of the defendant Ismail Khan. The application for bringing on record the legal representatives of the defendant Ismail Khan and setting aside the abatement was filed in the trial Court on 25th May, 94 after a delay of about 20 days. In his applica- tion, the plaintiff- appellant stated that he had come to know about the death of the defendant 15 days ago. The learned trial Court after hearing the counsels for the parties, dismissed the application filed by the plaintiff-appellant under Orders 22 Rule 9 and 22 Rule 4 of the Civil Procedure Code by order dated 23rd December, 94 on the ground that the delay in filing the applications was not sufficiently explained. (3). The plaintiff-appellant preferred an appeal against the order of abatement passed by the trial court on 23rd December, 94. The appeal was heard and finally disposed of by the Additional District Judge No.1, Jodhpur by the judgment dated 13th December, 95. The learned Additional District Judge No.1, Jodhpur dismissed the appeal and upheld the order dated 23rd December, 94 passed by the trial Court. Feeling aggrieved by the judgment and decree passed by the courts below, the plaintiff has filed this second appeal. The appeal was admitted on 26th August, 96 for the disposal of the solitary question, whether in the facts and circumstances of the case, the Court should have allowed the application for setting aside abatement. Feeling aggrieved by the judgment and decree passed by the courts below, the plaintiff has filed this second appeal. The appeal was admitted on 26th August, 96 for the disposal of the solitary question, whether in the facts and circumstances of the case, the Court should have allowed the application for setting aside abatement. Hence, the only question to be decided in this appeal is whether the courts below should have allowed the applications filed by the plaintiff-appellant under Order 22 Rule 9 and Order 22 Rule 4 of the Civil Procedure Code. (4). At the very outset, it may be pointed out that the provisions contained in Rule 10 A of Order 22 of the Civil Procedure Code are entitled to be taken into consideration because of their importance. Rule 10 A of Order 22 of the Civil Proce- dure Code reads:- ``10.A. Duty of pleader to communicate to Court death of a party. Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract, between the pleader and the deceased party shall be deemed to subsist. (5). The importance of Rule 10 A of Order 22 of the Civil Procedure Code was considered by the Honble Supreme Court in Gangadhar & Ors. vs. Shri Rajkumar (1). In para no. 3 of the report, the Honble Supreme Court observed:- ``Rule 10-A which has been added in Order XIII of the Code of Civil Procedure by the Amending Act of 1976 provides that when a pleader appearing for a party to the suit comes to know of the death of the party, he shall inform the court about it and the court thereafter shall issue notice to the other party. In the case of an appeal, the word ``suit has to read as ``appeal.. This provision was introduced specifically to mitigate the hardship arising from the fact that the party to an appeal may not come to know about the death of the other party during the pendency of the appeal but when it is awaiting its turn for being heard. This provision was introduced specifically to mitigate the hardship arising from the fact that the party to an appeal may not come to know about the death of the other party during the pendency of the appeal but when it is awaiting its turn for being heard. The appeal lies dormant for years on end, one cannot expect the other party to be a watchdog for day to day survival of the other party. When the appeal on being notified for hearing is activated, knowledge occasionally dawns that once of the other party has not only died, but the time for substitution has run out and the appeal has abated. In order to see that administration of justice is not thwarted by such technical procedural lapse, this very innovating provision has been introduced. Whereby, a duty is cast upon the learned Advocate appearing for the party who comes to know about the death of the party to intimate to the court about the death of the party represented by the learned counsel and for this purpose a deeming fiction is introduced that the contract between dead client and lawyer subsists to the limited extent after the death of the client. (6). With respect, it appears that the words ``Order XIIII have been printed in the report on account of a printing mistake in place of ``Order XXII of the Civil Pro- cedure Code. (7). A bare reading of Rule 22 Order 10-A shows that the counsel for the deceased party has been visited with the statutory duty to intimate to the Court in which the suit or appeal is pending, about the death of the party. Once, the Court is informed about the death of a party, a statutory duty is imposed on the court to inform the other party to the suit or appeal about the death of the deceased. The expression ``the other party in Rule 10-A of Order 22 of the Civil Procedure Code, may in suitable cases is interpreted as meaning the party to the suit or appeal and not only the counsel of such party. In the instant case, the impugned orders passed by the courts below do not indicate that the provisions of Rule 10-A of Order 22 of the Civil Procedure Code were taken into consideration by them. In the instant case, the impugned orders passed by the courts below do not indicate that the provisions of Rule 10-A of Order 22 of the Civil Procedure Code were taken into consideration by them. In the order dated 23rd December, 94, there is nothing to indicate that the court gave information to the plaintiff about the death of the defendant Ismail Khan. In any case, the order passed by the trial Court shows that the plaintiff-appellants counsel was informed about the death of the defendant on 3.3.94 when the case was called for hearing. It appears that the appellants case in the trial Court as well as in the appellate court was that he came to know about the death of the defendant 15 days before the filing of the applications by him. There was nothing before the courts below to infer that the cause of delay pointed out by the plaintiff- appellant in his applications was untrue or was false. It is quite possible that the letters sent by the counsels for the plaintiff, to the plaintiff might have reached with delay. (8). In view of above reason, the omission on the part of the trial Court and of the first appellate court to take into consideration, the provisions contained in Rule 10-A of Order 22 of the Civil Procedure Code and to further disbelieve the plaintiff-appellant without sufficient cause as to the date on which he came to know about the death of the defendant calls for interference with the impugned judgments of the trial Court and the first appellate court. It is a fit case in which the technical objection raised against the applications filed by the plaintiff-appellant under Order 22 Rule 9 and Order 22 Rule 4 of the Civil Procedure Code should not have been allowed to succeed as they are likely to defeat the ends of justice. (9). I, therefore, allow this appeal. The order passed by the trial Court on 23.12.94 and the judgment as well as the decree dated 13.12.95 passed by the first appellate court are hereby set aside. The application under Order 22 Rule 9 of the Civil Procedure Code is allowed and the abatement of the suit is set aside. The plaintiff-appellants application to bring on record the legal representatives of the deceased defendant is hereby allowed. The application under Order 22 Rule 9 of the Civil Procedure Code is allowed and the abatement of the suit is set aside. The plaintiff-appellants application to bring on record the legal representatives of the deceased defendant is hereby allowed. In the circumstances of the case, the parties shall bear their own costs. The appellant shall appear before the trial Court on 15.2.1999. The suit shall be restored back to its original number and after bringing the legal representatives of the defendant on record, the suit shall be heard and decided in accordance with law.