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2005 DIGILAW 563 (AP)

Budumuru Vijayalakshmi v. Ponnada Krishna Rao

2005-06-28

L.NARASIMHA REDDY

body2005
( 1 ) THESE two Civil Revision petitions arise out of orders passed in two separate applications filed in O. S, No. 85 of 2001 on the file of the learned Junior Civil Judge, rajam. ( 2 ) THE petitioner filed the suit against one ponnada Krishna Rao for the relief of specific performance of an agreement of sale. Even before the trial of the suit was commenced, the sole defendant is said to have died. The petitioner states thatshe was neitherinformed the date of death, nor could she know the same, on account of the fact that she shifted her residence to Visakhapatnam. On coming to know about this development, she filed i. A. No. 602 of 2002 under Order XXII Rule 4 c. P. C. to set aside the abatement. Since, there was delay of 160 days in filing I. A. No. 602 of 2002, she filed I. A. No. 697 of 2002 under Section 5 of the Limitation Act, 1963 to condone the delay. Through its order, dated 12-6-2003, the trial Court dismissed I. A. No. 697 of 2002. On the ground that I. A. No. 697 was dismissed, the trial Court dismissed I. A. No. 602 of 2002. Hence, these two revision petitions. ( 3 ) SMT. T. V. Sridevi, learned counsel for the petitioner submits that basically, under rule 10-A of Order XXII C. P. C. it was the obligation of the counsel appearing for the defendant in the suit, to intimate the factum of death of his client duly serving a copy of such intimation on the counsel appearing for the petitioner herein. She submits that this vital step was not taken and that in the absence of such intimation, the petitioner cannot be said to have been indifferent or not diligent, in pursuing the remedy. Though notices were served on the proposed legal representatives they have not responded. ( 4 ) THE trial Court refused to condone the delay in presenting the application to set aside the abatement caused on account of the death of the sole defendant in the suit. Parliament amended Order XXII C. P. C. by incorporating Rule 10-A, imposing an obligation on the part of the counsel of a party to intimate the factum of the death of his client, to the Court as well as to the counsel appearing for the other party. Parliament amended Order XXII C. P. C. by incorporating Rule 10-A, imposing an obligation on the part of the counsel of a party to intimate the factum of the death of his client, to the Court as well as to the counsel appearing for the other party. The very basis for inclusion of this provision was that one party to a suit is not expected to know the death of the other party and that the abatement resulting out of the death, if not intimated, cannot result in detriment to such party. Failure to comply with the requirement under rule 10-A of Order XXII C. P. C. provides sufficient basis for condonation of delay, unless it is proved or is evident that the factum of death of the party was known to the other party, long before the application under rule 9 of Order XXII C. P. C. is filed. ( 5 ) THE record does not disclose that the counsel for the sole defendant had delivered such intimation to the trial Court after the death of his client. It was not even contended by the respondents herein that the petitioner was aware of the death of the sole defendant and despite the same, she has not filed the applications within time. The contention of the petitioner that she shifted her residence to Visakhapatnam, stood unrebutted. If the matter is examined in the context of these facts it cannot be said that there was any willful or deliberate delay on the part of the petitioner in taking steps to bring the legal representatives on record. ( 6 ) HENCE, the Civil Revision Petitions are allowed and consequently the delay in filing the application to set aside the abatement shall stand condoned. As a result, the abatement shall aiso stand set aside. The trial Court shall examine the application filed underrule4oforderxxii C. P. C. for bringing the legal representatives of the deceasedsole respondent on record and pass appropriate orders. There shall be no order as to costs.