Deepak Verma vs Daya Nand

,,

Prateek Jalan, J",,

The revisionist assails an order dated 30.05.2018, passed by the Trial Court, by which the application of the respondent/plaintiff for substitution of",,

the deceased defendant, under Order XXII Rule 4 of the Code of Civil Procedure, 1908 [hereinafter referred to as “CPCâ€​], was allowed.",,

On 11.11.2014, the plaintiff filed a suit for recovery against Sh.Chandu Lal Verma, the father of the revisionist [hereinafter referred to as ""original",,

defendant""]. The suit filed by the plaintiff was for arrears of rent under a tenancy of a shop taken by the original defendant from the plaintiff. The",,

shop is situated on the ground floor of property bearing No.1456, Gali No.100, Ganesh Pura, Tri Nagar, Delhi-110035. It appears from the record that",,

the plaintiff also resides at the same address.,,

The original defendant died on 30.01.2016, and the plaintiff filed an application for substitution of his legal heirs on 28.05.2016. The revisionist",,

contested the application on the ground of limitation. It is not disputed that, in the course of proceedings before the Trial Court, the death of the original",,

defendant was communicated to the Court and recorded in an order dated 19.03.2016. The plaintiff, however, claimed in the application for",,

substitution that he found out about the death of the original defendant only when possession of the tenanted premises was handed over to him by the,,

revisionist on 17.05.2016. (The revisionist disputes this position and contends that the possession of the shop was taken over forcibly on that date).,,

The Trial Court, by the impugned order, has held that the revisionist failed to substantiate his plea that the plaintiff had knowledge of the death of his",,

father since 30.01.2016. The application of the plaintiff was, therefore, allowed with the observation, ""In view of the same, it is presumed that the date",,

of knowledge about death of the defendant is 17.05.2016 and not 30.01.2016"".",,

Learned counsel for the revisionist submitted that the application of the plaintiff was clearly barred by limitation under Article 120 & 121 of the,,

Schedule to the Limitation Act, 1963 [hereinafter referred to as the ""Act""], which provides for time to run from the date of death of the deceased, and",,

not from the date of knowledge thereof. Learned counsel pointed out that the plaintiff had neither filed an application for setting aside the abatement,,

of the suit, nor for condonation of delay. He relied on various judgments, including the judgment of the Supreme Court in Union of India vs. Ram",,

Charan & Ors. (1964) 3 SCR 467, of this Court in Thakur Bir Randhir Singh vs.Thakur Kartar Singh (Deceased) Through L.Rs (1993) 50 DLT 419,",,

of the Andhra Pradesh High Court in Nethra Chits Pvt. Ltd., Hanamkonda vs. B. Ramachandra Reddy & Ors. AIR 2003 AP 486 and the Calcutta",,

High Court in Sri Aloke Kumar Satnaliwala vs. Bharat Petroleum Corporation Ltd. [Judgment dated 09.12.2014 in CO No.1927 & 2125 of 2012].,,

Learned counsel for the respondent, on the other hand, submitted that the date of knowledge of the death is the starting point of limitation and relied",,

upon the judgment of this Court in S. Gurbaksh Singh vs. Shri N.G.Nada (2010) 168 DLT 437. He pointed out that neither the counsel for the original,,

defendant, nor the revisionist had communicated the fact of the death of the original defendant to the Court as required under Order XXII Rule 10A of",,

the CPC.,,

The relevant provisions of Rules 4, 9 and 10 A of Order XXII of the CPC are reproduced below:",,

“ORDER XXII: DEATH, MARRIAGE AND INSOLVENCY OR PARTIES",,

xxxx xxxx xxxx xxxx,,

Procedure in case of death of one of several defendants or of sole defendant,,

(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole",,

defendant or sole surviving defendant dies and the right to sue survives the Court, on an application made in that behalf, shall cause the legal",,

representative of the deceased defendant to be made a party and shall proceed with the suit.,,

xxxx xxxx xxxx xxxx,,

(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.",,

xxxx xxxx xxxx xxxx,,

(5) Where-,,

(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal",,

representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence,",,

abated, and",,

(b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and",,

also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not",,

making the application within the period specified in the said Act, the Court shall, in considering the application under the said section 5, have due",,

regard to the fact of such ignorance, if proved.]",,

xxxx xxxx xxxx xxxx,,

Effect of abatement or dismissal.-,,

(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.",,

(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent,,

plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from,,

continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.",,

(3) The provisions of section 5 of the Indian Limitation Act, 1877 (15 of 1877), shall apply to applications under sub-rule (2).",,

[Explanation.-Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in",,

the suit which had abated or had been dismissed under this Order.],,

THIRD DIVISION-APPLICATIONS,,

Description of application,Period of limitation,"Time from which period begins to

run

PART I-APPLICATIONS IN SPECIFIED CASES,,

xxxx xxxx xxxx xxxx,,

Under the Code of Civi

Procedure, 1908 (5 of 1908) to

have the legal representative of a

deceased plaintiff or appellant, or

of a deceased defendant or

respondent, made a party.",lNinety days,"The date of death of the plaintiff,

appellant, defendant or respondent

as the case may be.

Under the same Code for an

order to set aside an abetment.",Sixty days,The date of abatement.

representatives is incompetent. If such an application is filed, the question of the plaintiffâ€s ignorance of the death may be considered while deciding",,

whether there was “sufficient cause†for the delay. In the present case, a detailed discussion on the question of condonation of delay in a case of",,

this nature is not necessary as no application for condonation of delay is on record.,,

For the same reason, the judgment of this Court in S. Gurbaksh Singh (supra) cited on behalf of the plaintiff/respondent is not relevant for the",,

present purposes. Unlike the present case, in that case, an application for setting aside the abatement was in fact made, and had been dismissed by the",,

Trial Court. It was further held that there was no abatement in that case in view of the fact that one of the legal heirs of the deceased defendant was,,

already impleaded as a defendant and the right to sue had survived.,,

The effect of Order XXII Rule 10A is to cast a burden on the counsel for the deceased party to inform the court of the fact of the death. The,,

provision was introduced by the Code of Civil Procedure (Amendment) Act, 1976, and was explained by the Supreme Court inG angadhar and Anr",,

vs. Raj Kumar (1984) 1 SCC 121, in the following terms:",,

“3. Now the fact remains that admittedly the appellants claim that they came to know about the death of the deceased respondent when the,,

present respondent moved an application for substitution. Rule 10-A which has been added in Order XXII 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 be read as",,

“appealâ€. 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 and one cannot expect the other party to be a watch-dog for day-to-day survival of the other party. When the appeal on being notified,,

for hearing is activated, knowledge occasionally dawns that one or 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 innovative 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.,,

xxxx xxxx xxxx xxxx,,

Sole respondent died on April 19, 1980. His adopted son applied for substitution which included intimation to the Court of the death of the",,

respondent as envisaged by Rule 10-A on July 1, 1981, that is, nearly one year and six weeks after the death of his adoptive father and promptly",,

within two weeks appellants moved IA No. 2110 of 1981. And it is not made clear when notice of IA No. 1980 of 1981 moved by the adopted son,,

was served upon the appellants or their learned advocate. The legislative intention of casting a burden on the learned advocate of a party to give,,

intimation of the death of the party represented by him and for this limited purpose to introduce a deeming fiction of the contract being kept subsisting,,

between the learned advocate and the deceased party was that the other party may not be taken unawares at the time of hearing of the appeal by,,

springing surprise on it that the respondent is dead and appeal has abated. In order to avoid procedural justice scoring a march over substantial justice,,

Rule 10-A was introduced by the Code of Civil Procedure (Amendment) Act of 1976 which came into force on February 1, 1977. Unfortunately, the",,

learned Judge took no notice of the wholesome provision and fell back on the earlier legal position which automatically stands modified by the new,,

provision and reached an unsustainable conclusion. In fact in a fact situation as the present one, we may preferably refer to Bhagwan Swaroop v.",,

Mool Chand [(1983) 2 SCC 132] . The view taken in that case would unquestionably show that the High Court was in error in refusing to set aside,,

abatement. We are of the opinion that the earliest knowledge about the death of the deceased respondent can be attributed to the appellants on July 1,",,

1981 when Raj Kumar applied for substitution. Promptly within two weeks the application for substitution was made by the appellants. Therefore, it is",,

satisfactorily established that the appellants were prevented by a sufficient cause in making the application for substitution within the prescribed period,,

of limitation and the delay deserves to be condoned.â€​,,

Although the CPC does not expressly provide for the consequences of non-compliance with Order XXII Rule 10 A of the CPC, at the very least,",,

it is a factor to be taken into account while deciding whether or not delay in filing an application for setting aside abatement is justified. The provision,,

does not, however, automatically extend the period of limitation provided under Articles 120 and 121 of the Limitation Act, 1963.",,

The position which emerges from the above discussion is that the period of limitation of making an application for substitution of legal heirs of a,,

deceased defendant begins to run from the date of death. The date upon which the plaintiff acquired knowledge of the death is not relevant for this,,

purpose. The suit would abate as against the deceased defendant after the period of 90 days provided under Article 120 of the Limitation Act expires.,,

However, even after this period has elapsed, the plaintiff can apply for setting aside the abatement of the suit. Although the period of 60 days is",,

provided for this purpose in Article 121, any delay in making the application can be condoned if the plaintiff is able to show sufficient cause for the",,

delay. The plaintiff's ignorance about the death of the defendant and the non-compliance with Order XXII Rule 10A of the CPC are relevant factors,,

which would have a bearing while considering the application for condonation of delay.,,

In view of the aforesaid, the view taken by the Trial Court cannot be sustained, and the impugned order dated 30.05.2018 is set aside. However,",,

the plaintiff is at liberty to file a fresh application along with prayers for setting aside the abatement of the suit and condonation of delay therein which,,

will be decided on their own merits in accordance with law. All rights and contentions of the parties in this regard are left open. If such an application,,

is filed within one month from today, the Trial Court will also have regard to the period taken for disposal of this petition in deciding whether or not to",,

condone the delay.,,

The revision petition, along with pending applications, is disposed of in terms of the above. There will be no orders as to costs.",,