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Himachal Pradesh High Court · body

2000 DIGILAW 156 (HP)

NEW INDIA ASSURANCE CO. v. BALU

2000-07-04

K.C.SOOD, KAMLESH SHARMA

body2000
JUDGMENT Kamlesh Sharma, J.:- These applications (CMPs(M) No. 386 and 387 of 1999 in FAO (MVA) No. 145 of 1991, CMPs (M) No. 388 and 389 of 1999 in FAO (MVA) No. 146 of 1991 and CMPs(M) No. 390 and 391 of-1999 in FAO (MVA) No. 201 of 1991) have been filed by the appellant-Insurance company for bringing on record legal representative of deceased respondent Harbans Lal after setting aside abatement and in the alternative for exemption from the necessity of substituting legal representative of deceased Harbans Lal, who had admittedly neither contested the claim petitions nor the appeals. 2. The brief facts are that these appeals at the instance of New India Assurance Company arise out of the same accident of bus No.DEP-6466 owned by deceased respondent Harbans Lal. In all the claim petitions filed by respon-dents-claiments out of which the present appeals have arisen deceased Harbans Lal was party respondent but he did not care to come forward to contest the claim petitions despite due service upon him, as noticed in the impugned awards. In these three appeals (FAO(MVA) Nos. 145, 146 and 201 of 1991) also he was duly served but he failed to put in appeearnace. The fourth appeal (FAO(MVA) No. 168 of 1991) was the last one ot be admitted on 14.11.1991 when it was ordered that it will be heard alongwith FAOs(MVA) 145,146 and 201 of 1991, when notice of FAO(MVA) No. 168 of 1991 was sent to respondent Harbans Lal it was reported that he had died on 23.10.1992 and on the application filed bythe appellant-Insurance Company his legal representative, namely, Sunil Kumar alias Raju was brought on record by order dated 20.3.1995. When all the four appeals came up for final hearing on 27.7.1999 it was pointed out by learned counsel appearing for sunil Kumar alias Raju on FAO(MVA)No. 168 of 1991 that legal representative of deceased Harbans Lal has not been brought on record in FAOs(MVA) 145, 146 and 201 of 1991. On this, learned counsel for the appellant-Insurance Company took time to take necessary steps and filed these applications under consideration. 3. This Court has heard learned counsel for the parties and gone through the record. 4. On this, learned counsel for the appellant-Insurance Company took time to take necessary steps and filed these applications under consideration. 3. This Court has heard learned counsel for the parties and gone through the record. 4. As per learned counsel for the appellant, since after admission no further proceedings were held before the appeals were listed for final hearing on 27.7.1999 when the factum of death of respondent Harbans Lal was pointed out, steps for bringing on record legal respresentative of deceased respondent Harbans Lal could not be taken by the appellant. According to the learned counsel, legal representative of deceased Harbans Lal was already on record of FAO(MVA) 168 of 1991 with which the other three appeals were connected, as such, no prejudice will be caused if these applications are allowed and legal representative is brought on record after setting aside abatement of these appeals against deceased respondent Harbans Lal. It is also argued that learned counsel appearing for Sunil Kumar alias Raju, the legal representative of deceased Harbans Lal in FAO(MVA) No. 168 of 1991, has also failed to discharge his duty under rule 10-A of Order 22, Code of Civil Procedure, by informing the Court that three appeals (FAO(MVA) 145,146 and 201 of 1991) could not be heard alongwith FAO(MVA) 168 of 1991 as their records had become defective on the death of respondent Harbans Lal. Even the respondents-claimants in their Cross-Objections have not taken steps to bring on record legal representative of deceased respondent Harbans Lal. In the alternative it is argued that since deceased respondent Harbans Lal had not come forward to contest the claim petitions as well as three appeals (FAOs(MVA) 145,146 and 201 of 1991) despite due service upon him it is a fit case to grant exemption to the appellant from the necessity of substituting his legal representative as provided under Rule 4(4) of order 22, Code of Civil Procedure. 5. On the other hand, learned counsel for the proposed legal representative, namely, Sunil Kumar alias Raju, has vehementaly opposed these applications on various grounds. His submission is that the appellant is negligent in not taking the steps for bringing on record legal representative or deceased respondent Harbans Lal after coming to know of his death in FAO(MVA) 168 of 1991 on 6.9.1994 when it took time to do the needful. His submission is that the appellant is negligent in not taking the steps for bringing on record legal representative or deceased respondent Harbans Lal after coming to know of his death in FAO(MVA) 168 of 1991 on 6.9.1994 when it took time to do the needful. According to the learned counsel, no sufficient cause is shown in the application for setting aside abatement which was automatic. In reply to the alternative prayer of exemption from the necessity of bringing on record legal representative of deceased respondent Harbans Lal learned counsel, relying upon Collector, Kalahandi v. Gaurisankar Bag and others, AIR 1995 Orissa, 138, has urged that Rule 4(4) of Order 22, Code of civil Procedure, does not apply to the appeals. 6. This Court begs to differ with the learned Judge in Collector Kala-handiv. Gaurisankar Bag and others(supra). From Rule 11 of Order 22, Code of Civil Procedure, there remains no doubt that Order 22 applies to the appeals. In Rule 11 of Order 22 CPC, it is made clear that the words plaintiff, defendant and suit, respectively, as used in Order 22, include appellant, respondent and appeal, respectively. Moreover, in the absence of any special procedure in case of death of a party in appeal the general provisions contained in Order 22 CPC will apply. So far judgment in Corporation of Calcutta v. Himansu Sekhar Basu and others, AIR 1987 Calcutta 58, is concerned, it is on its own facts and its ratio has no application to the case in hand. 7. Learned Counsel has also pointed out that on the failure of appellant to bring on record legal representative of deceased respondent Harbans lal the appeals stood abated against him automatically and power under Rule 4(4) to exempt the appellant from the necessity of substituting the legal representative of deceased respondent Harbans Lal cannot be exercised after abatement. In order to substantiate this submission learned counsel has relied upon Dhruba Bhoi and others v. Brundabati Bhoiani and others, AIR 1973 Orissa 55 and Annapurna Debi v. Smt. Harsundari Dassi and others, AIR 1975 Calcutta 12. Again this Court finds itself unable to agree with the view taken in these judgments. In order to substantiate this submission learned counsel has relied upon Dhruba Bhoi and others v. Brundabati Bhoiani and others, AIR 1973 Orissa 55 and Annapurna Debi v. Smt. Harsundari Dassi and others, AIR 1975 Calcutta 12. Again this Court finds itself unable to agree with the view taken in these judgments. The intention behind Rule 4(4) of Order 22, CPC, is very clear that if the deceased defendant (respondent) has not come forward to contest the suit (appeal), the plaintiff (appellant) need not be asked to file an application for bringing on record the heirs of such deceased defendant (respondent). The expression used in sub-rule 4 of Rule 4 of Order 22, Code of civil Procedure, "whenever it thinks fit" makes it further clear that power to exempt is not inhibited by the condition that the application for the said purpose must be moved within 90 days, which would defeat the very purpose of the provision. Infact, sub-rule 4 of Rule 4 of Order 22, Code of Civil Procedure, is an exception to Rules 4 and 9 of Order 22, Code of Civil Procedure, which execuses the plaintiff (appellant) from the responsibility of moving an application within 90 days to bring on record legal representative of deceased defendant (respondent), failing which to move another application for setting aside abatement if he intends to continue his suit/appeal against the legal representative of deceased defendant(respondent). Therefore, it cannot be said that an application seeking exemption under sub-rule 4 of Rule 4 of Order 22, Code of Civil Procedure, is required to be filed within 90 days whereafter the abatement is automatic. The view taken by Orissa and Calcutta High Courts has been dissented from in S.A. Rahim and another v. Rajamma and others, AIR 1977 Karnataka 20, Nepal Chandra Saha v. Rabati Mohan Sana and others, AIR 1979, Gauhati 1, Rajnath Sahgal and others v. Shiva Prasad Sinha and others, AIR 1979 Patna 239, Velappan Pillai v. Parappan Panickar and others, AIR 1969 Madras 309, Mohammad. Mustageem and others v. Aftab Ahmad and others, AIR 1983 Allahabad 368 and Girdhari Lal and others v. Laxminarain, AIR 1990, Rajas-than 15. Mustageem and others v. Aftab Ahmad and others, AIR 1983 Allahabad 368 and Girdhari Lal and others v. Laxminarain, AIR 1990, Rajas-than 15. The learned Single Judge of this Court in H.P. Financial Corporation v. Shri Surjit Singh and another, 1994(2) Shimla Law Cases 399, relying upon earlier judgment in Jagdish Prasad v. Bhawani Prasad and others, 1980 Shimla Law Cases 227, has also taken the similar view that an application seeking exemption need not be filed within 90 days and the question of first moving an application for getting abatement set aside does not arise. 8. Coining to the case in hand we find it a fit case to grant exemption to the appellant from the necessity of substituting legal representative of deceased respondent Harbans Lal, who did not care to come forward to contest the claim petitions as well as the appeals (FAOs(MVA) 145,146 and 201 of 1991) despite due service on him but in view of the fact that the legal representative of deceased respondent Harbans Lal is already on record in a connected appeal (FAO(MVA) 168 of 1991) it will be just and proper to bring him on record in the said three appeals, also by condoning delay and setting aside abatement. The sufficient cause shown in these applications is that since no further proceedings were held in three appeals (FAOs(MVA) 145, 146 and 201 of 1991) till these were listed for final hearing alongwith FAO(MVA) 168 of 1991, the appellant-Insurance Company were not aware that legal representative of deceased respondent Harbans Lal who had since died, was required to be brought on record of said three appeals. Since the appellant is a Company it is difficult in the absence of any material on record to hold that any of its official/Officer was negligent in not bringing on record the legal representative of deceased respondent Harbans Lal after acquiring knowledge of his death. Since the appellant is a Company it is difficult in the absence of any material on record to hold that any of its official/Officer was negligent in not bringing on record the legal representative of deceased respondent Harbans Lal after acquiring knowledge of his death. While construing the expression sufficient cause the learned Judges of Supreme Court in Union of India v. Ram Charan(deceased) through his legal representatives, AIR 1964 SC 215, have observed in para 9 that "it is true, as contended, that it is no duty of the appellant to make regular enquiries from time to time about the health or existence of the opposite party, but it does not mean that the mere fact of the appellants coming to know of the respondents death belatedly will, by itself, justify his application for setting aside the abatement. That is not the law. Rule 9 of O.XXII of the Code requires the plaintiff to prove that he was prevented by any sufficient cause from continuing the suit. The mere allegation about his not coming to know of the death of the opposite party is not sufficient. He had to state reasons which, according to him led to his not knowing of the death of the defendant within reasonable time and to establish those reasons to the satisfaction of the Court, specially when the correctness of these reasons is challenged by the legal representatives of the deceased who have secured a valuable right on the abatement of the suit." 9. Applying the ratio of the above judgment to the case in hand, we are of the view that in the totality of the facts and circumstances on record, as discussed hereinabove, it is a fit case to bring on record the legal representative of deceased respondent Harbans Lal by condoning delay and setting aside abatement order accordingly. The applications are allowed and name of deceased respondent Harbans Lal is ordered to be substituted by, his legal representative Sunil Kumar alias Raju. Copy of this order be placed on the files of connected appeals, i.e., FAOs(MVA) 146,201 and 168 of 1991. Appeal Allowed