T. Sarojamma alias Saroja Bai vs Mohammed Khaleelur Rahiman and Others

This application is filed to bring the legal representatives of the sole deceased respondent on record. In the affidavit filed in support of the petition it was stated that the sole respondent died on 7-4-1996 leaving behind the respondents named in the affidavit. It was further stated that the above information as to the demise of the sole respondent was brought to the notice of the petitioner only recently. However, learned Counsel for the respondent, who was engaged pending the appeal prior to the demise of the respondent, submitted that the information regarding the demise of the sole respondent was already conveyed to the erstwhile Counsel of the petitioner by a letter sent by registered post to him. Learned Counsel for the petitioner has now fairly conceded before me that a letter was addressed to the Counsel for the petitioner on 10-5-1996 informing the demise of the sole respondent.

The petitioner is the plaintiff in OS No.75/84 on the file of the II Additional District Munsif, Kurnool, which was decreed on 14-2-1990. Aggrieved by the said judgment and decree, the deceased respondent filedAS. No.42/90 on the file of the II Additional District Judge, Kurnool, and it was allowed by judgment dated 9-11-1992. As against that judgment the petitioner filed the present second appeal. Pending the second appeal, the sole defendant/respondent died on 7-4-1996, as stated supra Under Order 22 Rule 4 of CPC (for short ''the Code'') read with Article 120 of the Limitation Act an application has to be filed within 90 days from the date of death of the deceased respondent. This petition, however, was filed only on 19-10-1997. Thus, there is a delay of over 400 days. Hence, the appeal abates. It is curious to notice that the petitioner has neither filed an application to set aside the abetment, nor an application u/s 5 of the Limitation Act.

Learned Counsel for the petitioner, however, seriously contends, relying upon Order 22 Rule 10-A of the Code, that the appeal did not abate. According to him it was incumbent upon the Counsel of the deceased respondent, who had come to know of the death of the party, to inform the Court about the death of the party and the Court, thereupon, should give notice of such death to the petitioner. Since the Counsel for the respondent has not informed the Court, having come to know about the death of the respondent, and the petitioner has come to know about the death only recently, the time would not run for the purpose of limitation from either the date of death or from the date of the knowledge of the death.

I am not able to agree. Learned Counsel has not correctly understood the scope of Rule 10A of Order 22 of the Code. It should be noticed that Rule 10A of Order 22 of the Code has been inserted by the CPC (Amendment) Act, 1976, only forthe purpose of reducing the complications that may arise by reason of the ignorance of the death of one party at a later stage of the suit or appeal. Rule 10A therefore enjoins the Counsel to inform the Court, if he comes to know of the death of the party, in case the other party was ignorant of the death of the other party, to facilitatehim to make an application to bring the legal representatives of the deceased, on record, (hereby the delay in the progress of the proceedings would be effectively avoided. The duty of the Counsel arises only if the other party is ignorant of the death of the deceased. However, if he has got knowledge of the death of the deceased, an application has to be filed by him, within the period prescribed by the Limitation Act to file such an application, to bring the legal representatives of the deceased party on record. Such period shall commence from the date of the death of the party. Rule 10A cannot, however, withhold the running of the period of limitation from the date of the death of the party nor will it enable the other party, who has got knowledge of the death of the deceased, to file an application to bring the legal representatives of the deceased on record within 90 days from the date of informing the Court about the death of the party by the Counsel representing the other party and the issue of notice by the Court. The party is not relieved of the burden to file an application from the date of the death or to explain the delay in making such an application, if there is delay in making such application. Under Article 120 of the Limitation Act, 1963, the starting point of limitation for filing an application to bring the legal representatives of the deceased on record is the date of the death of the party. If no application is filed within the period of limitation, the suit/appeal abates. An application has to be filed to bring the legal representatives of the deceased on record within 60 days from the date of abatement and if there is delay in making such an application, the delay should be properly explained in the affidavit filed in support of the petition u/s 5 of the Limitation Act Thus, the scope of Rule 10A of Order 22 of the Code is limited in nature and it should not be construed as the starting point for running the period of limitation. Learned Counsel for the petitioner has, therefore, misdirected himself in construing Rule 10A of Order 22 of the Code.

A learned single Judge of Kamataka High Court in Doddappa Maritammappa Basaput and Another Vs. Erappa Mudakappa Navalli and Others, , has considered the scope of Order 22 Rule 10A of the Code in the above, circumstances holding-

"Thus, it is clear that the said provision has been inserted to enable the Pleader to inform the Court if he comes to know about the death of the party represented by him, with an object that in a case where the plaintiff, or the appellant, or the petitioner, as the case may be, is ignorant of the death of the defendant, or the respondent as the case may be, it will facilitate him to make an application to bring the legal representatives of the deceased party on record and thereby the further delay in the progress of the proceedings may be avoided. But there is nothing in Rule 10A of Order 22 of the Code, which enables the Court to hold that the limitation to file an application to bring the legal representatives of the deceased party on record commences from the date of informing the Court about the death of the party by the Counsel representing the said party or to hold that the plaintiff, or the appellant, or the petitioner as the case may be, who is required to make an application to bring the legal representatives of the deceased party on record within file period prescribed under law, is relieved of the burden to explain the delay in making such application. The starting point of limitation for filing an application to bring the legal representatives of the deceased party on record is the date of the death of the party to the proceeding (vide Article 120 of the Limitation Act, 1963). The suit or the appeal or the petition, as the case may be, abates on the expiry of 90 days from the date of the death of the party to the proceeding if no application to bring the legal representatives on record is made within that period."

I am in respectful agreement with the view of the learned Judge.

The following decisions have been cited by the learned Counsel for the petitioner,which in my view, are not apposite to the question that is involved in this case.

In Golla Ramulu and Another Vs. Hari Joshi (died) per his L.Rs., , a learned single Judge of this Court held that-

"Rule 10A of Order 22 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. The duty is cast upon the advocate appearing for the party who comes to know about the death of the party to communicate to the Court about the same.''''

It is to be noticed that in the above case the petitioners came to know about the death of the respondent only when they were informed by their advocate in May 1990 and filed an application in July 1990 within the period of 49 days. Learned Judge has also held that the limitation commences from the date of the death of the respondent. This decision in fact is in support of my view and does not help the petitioner.

Vijayalakshmi Jayaram Vs. M.R. Parasuram and others, , cited by the learned Counsel Tor the petitioner, is a case where the party is not aware of the death of the other party and the Court held that it was the duty of the Counsel who has come to know about the death of the party to inform the Court under Order 22 Rule 10A of the Code. In the instant case, the Counsel for the petitioner was informed by the Counsel for the deceased respondent regarding the demise of the respondent and it was admitted by the learned Counsel for the petitioner that he was so informed. Hence, Order 22 Rule 10A of the Code does not come into play.

In Urban Improvement Trust, Jodhpur v. Gokul Narain 1996 (4) ST 509, an application under Order 22 Rule 4 CPC was filed within 30 days of the date of knowledge. It was held-

"The State is not expected to keep watch over the survival of the respondent andlapse of Counsel to intimate to the Counsel appearing in this Court cannot be construed to be knowledge of death. Even if it is assumed that abatement was caused, since application was filed under Order 22, Rule 4, CPC, within 30 days from the date of the knowledge there is no delay in making the application to bring the legal representatives on record in this appeal. There is, hence, no abatement by reason of the death of the respondent.''''

The application was filed within 30 days of the date of knowledge. It is therefore not a case where it was held that the limitation starts only from the date of information given to the Court by the Counsel of the deceased party. This decision also does not help the petitioner.

In Polavarapu Ankineedu v. Sri Bavaji Mutt, Singarayapalam AIR 1962 AP 134, Qamar Hasan, J, held-

"The thing if it is to be done, must be done in strict compliance of the letter. Arty other method or source would not be a substitute for the one prescribed underlaw."

That case arose under Order 21 Rule 22 of the Code. Considering the contention that the appearance put in by the Counsel in appeal must be deemed lo be the notice of the E.P., since notice must be strictly under the provisions of Order 21 Rule 22 of the Code and not from other source, the above salutory principle was emphasised by the learned Judge. We are not concerned in this case with such-a situation. The said decision also does not come in aid of the petitioner.

The other decision in 1996 (1) CCC 21 has also no application to the facts of the case.

In the above circumstances the CMP is barred by limitation and is accordingly dismissed. The Second Appeal abates against the sole respondent. Hence, the Second Appeal is also dismissed.