Narmada Shankar vs Bajrang Lal and Another

Gyan Sudha Misra, J.—This is an application filed on behalf of the legal representatives of the deceased-respondent No. 1 praying for dismissal of the appeal as having abated since the sole-respondent No. 1-Bajrang Lal S/o Bhuralalji died way back on 20th August 2001 and thereafter no application was filed by the appellant to substitute legal representatives of the deceased- respondent. However, an application which was filed later by the counsel for the appellant for substitution was time barred as it was filed after considerably long delay which was much beyond the statutory period of 90 days prescribed for moving such application.

The counsel for the parties were heard on this application but it could be noticed that in view of the amendment introduced in the CPC 1908 under Order 22, Rule 10-A has been inserted which clearly lays down that it is the duty of the pleader to communicate to the Court regarding the death of a party and thereafter the Court has to give notice of such death to the other parties, as for this purpose, the contract between the pleader and the deceased party is deemed to subsist. It could be noticed that the counsel for the respondent informed the appellant regarding the death of the deceased only after expiry of the period of 90 days and the application for substitution from this date has been filed within a period of 90 days.

Learned Counsel for the respondent Ms. Shandilya however, submitted that the knowledge of death should be attributed to the appellant as they are closed door neighbours and they have duly participated in the rituals regarding the death of the respondent and therefore they were duty bound to file an application for substitution within the prescribed period of limitation of 90 days in this regard.

However, this information which has been furnished orally to this Court could not be traced out any where in the reply of the respondents and therefore, it will have to be ignored in view of Rule 10-A of the CPC. Infact the very purpose of Inclusion of Section 10-A in the CPC, is to obviate the difficulties which the parties have to encounter in case of death of a party to a pending proceeding and therefore the provision incorporated in the Act has to be resorted to in letter and spirit. It is for this very purpose that the informal information which is attributed to the counsel for the appellant will have to be ignored. It is an admitted position that the application for substitution was filed within a period of 90 days from the date of communication of death of the respondent and therefore this appeal cannot be held to have abated. This application therefore stands dismissed.