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Judgment
Ashok Menon, Chairperson
All these three Interlocutory Applications (I.As.) filed in the Appeals are for impleading the Legal Heirs of the deceased Respondent No.2. viz. late Mr. Anil Brijlal Aggarwal. Since these applications pertain to impleading of the Legal Heirs of the same deceased person who was a party in all the three Appeals, these applications are being disposed of by means of this common order.
The facts relevant for the purpose of disposal of these I.As. are thus:
During the pendency of the Appeals when the matters were taken up on 25.03.2022, it was brought to the notice of the Tribunal that the above-mentioned 2nd Respondent expired on 23.03.2019. The fact regarding the demise of the 2nd Respondent was informed orally, only on 25.03.2022. This Tribunal vide order dated 25. 03.2022 directed the Advocate for the rest of the Respondents to furnish the details of the legal heirs of the deceased Respondent to the counsel appearing for the Appellant. It is submitted that the counsel appearing for the Appellant sent a letter to the Advocate appearing for the Respondents to furnish the details of the Legal Heirs so as to enable them to take necessary steps to bring them on record. However, there was no response, and yet another letter was sent on 17.06.2022. In response to that letter, the counsel appearing for the rest of the Respondents sent an E-mail on 18.06.2022 indicating that deceased Anil Brijlal Aggarwal is survived by Rita Anil Aggarwal his wife, daughter Mrs. Shalini Dalal, and son Rishi Aggarwal. The Appellants state that they are desirous of bringing the aforesaid Legal Heirs of the deceased 2nd Respondent to the party array and to consequently amend the Memo of Appeal. It is also submitted that I.As. is filed within 90 days of the date of knowledge and furnishing of the information regarding the Legal Heirs of the deceased Respondent and, therefore, the same is within limitation.
Mr. Rishi Aggarwal the 1st Respondent in Appeals Nos. 38/2018 and 39/2018 is a son of the deceased and is already on party array in those two Appeals. While the wife of the deceased, Mrs. Rita Aggarwal is the 1st Respondent in Appeal No. 37/2018. Rishi Aggarwal has filed objections to the I.A. Nos. 315 and 316 of 2022 in his capacity as the first Respondent and also as the proposed legal heir. Though Mrs. Rita Aggarwal did not file any reply or objection to I.A.314/2022, Mr. Rishi Aggarwal sought to be impleaded as an additional 3rd Respondent in Appeal No. 37/2018 has filed his objections stating thus:
The 2nd Respondent died on 23.03.2019 and, therefore, the Appeal has abated after 90 days from the date of death as per the provisions of Order 22 Rule 4 (3) of the Code of Civil Procedure, 1908 (C.P.C. for short) which specifically states that where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. It is further stated that as per Article 120 of the Limitation Act, the time prescribed for filing an application to have the legal representatives of a deceased plaintiff or appellant or of a deceased defendant or respondent, made a party is 90 days from the date of death of the plaintiff, appellant, defendant or respondent, as the case may be. It is contended that the limitation beings to run from the date of death and not from the date of knowledge as stated by the Appellant. The death of Shri. Anil Brijlal Aggarwal was published in the obituary column of the Times of India newspaper published on 27th March 2019. The Appellant cannot, therefore, pretend to be ignorant about the death of the 2nd Respondent, contends the Respondent. No application has been filed under Order 22 Rule 5 of the C.P.C. on time and, therefore, the averment that the time begins only after the date of knowledge of the particulars of the legal heirs after it was furnished by the other Respondents is not tenable. Hence it is submitted that the Appeals as against the deceased 2nd Respondent has already abated, and the same may be recorded so. The Death Certificate and the copy of the news contained in the obituary column of the newspaper Time of India are also produced together with the replies.
Heard Shri. Rohit Gupta, the learned counsel appearing for the Appellant/Applicant and Shri. T. N. Tripathi, learned counsel appearing for the Respondents. Records perused.
Shri. Rohit Gupta submitted that the Appellant could not have known about the demise of the 2nd Respondent since they were not informed about it, and it cannot be presumed that they were aware of the news appearing in the obituary column. The learned counsel submits that even otherwise, the wife of the deceased person, Mrs. Rita Anil Aggarwal is already a party as a 1st Respondent in Appeal No.37/2018 while the son Shri. Rishi Agarwal is the 1st Respondent in the other two Appeal Nos. 38/2018 and 39/2018. They need to be impleaded in the Appeal they are not parties. The daughter of the deceased Mrs. Shalini Dalal is only a third party to this litigation and needs to be impleaded an additional Respondent in all three Appeals. Relying on the decision of the Hon’ble Supreme Court in Mahabir Prasad Vs. Jage Ram & Ors. 1971 (1) SCC 265 Mr. Rohit Gupta submits that where in a proceeding a party dies and one of the legal representatives is already on record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. The Hon’ble Supreme Court observed thus:
“7. Even on the alternative ground that Mahabir Prasad being one of the heirs of Saroj Devi there can be no abatement merely because no formal application for showing Mahabir Prasad as an heir and legal representative of Saroj Devi was made. Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he 'is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act the proceeding will not abate. On that ground also the order passed by the High Court cannot be, sustained.”
In Bhurey Khan Vs. Yaseen Khan (Dead) by Lrs. & Ors. 1995 Supp (3) 331 also on a similar point it is held thus:
“4. We have heard the learned counsel for the parties. After the order dismissing the appeal for non-prosecution was set aside by this Court the parties were relegated to the position as it stood earlier, namely, that the substitution application filed by the Appellant bringing on record the legal representatives to whom the notices were issued stood dismissed. But that could not furnish valid ground of abating the appeal as the six sons of Yaseen were already on record. The estate of deceased was thus sufficiently represented. If the appellant would not have filed any application to bring on record the daughters and widow of the deceased the appeal would not have abated under Order 22 Rule 4 of the Code of Civil Procedure as held by this Court in Mahabir Prasad V. Jage Ram. The position, in our opinion will not be worse where an application was made for bringing on record other legal representatives but that was dismissed for one or the other reason. Since the estate of the deceased was represented the Appeal could not have been abated.”
Relying upon the decision of Mahabir Prasad Vs. Jage Ram (Supra), the Hon’ble High Court of Judicature at Bombay in Keshao s/o Kawadu Maral & Anr. Vs. State of Maharashtra & Ors. 2005 (1) Mh.L.J. 1059 held that the provisions of Order 22, Rule 1 of the Code of Civil Procedure are not penal in nature and that the same have been procedural in nature and the substantive right of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspect of law. It was also held that the delay in taking out the application had to be computed from the date of knowledge of the death of a party and when the Appellant contends that he had no knowledge of the death of a party and that as soon as he acquired knowledge, he took an application for bringing Legal Heirs on record, there is no abatement. It is also observed by the Hon’ble Court that even if a proceeding abates, the Court has ample powers to set aside the abatement and condone the delay to bring the legal heirs on record.
Per contra, Mr. Tripathi points out that Article 120 of the Limitation Act is very clear and there is no ambiguity that the limitation pertaining to abatement begins to run from the date of death of the party and not from the date of knowledge and, therefore, the application to bring the Legal Heirs of the deceased Respondent on record has to be made within the time stipulated.
He relies on a decision of the Hon’ble Supreme Court in Union of India Vs. Ram Charan (Deceased) through his Legal Representatives AIR 1964 SC 215 wherein it is held thus:
“8. There is no question of construing the expression 'sufficient cause' liberally either because the party in default is the Government or because the question arises in connection with the impleading of the legal representatives of the deceased respondent. The provisions of the Code are with a view to advance the cause of justice. Of course, the Court, in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time need not be over-strict in expecting such proof of the suggested cause as it would accept for holding certain fact established, both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined while, if the abatement is not set aside, the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance. This, however, does not mean that the, Court should readily accept whatever the appellant alleges to explain away his default. It has to scrutinize it and would be fully justified in considering the merits of the evidence led to establish the cause for the appellant's default in applying within time for the impleading of the legal representatives of the deceased or for setting aside the abatement.”
Mr. Tripathi, therefore, argues that Rule 9 of O 22 of the Code of Civil Procedure requires the Appellant 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 has to state reasons which, according to him, led to his not knowing of the death of the Respondent within a reasonable time and to establish those reasons to the satisfaction of the Court, especially when the correctness of those reasons is challenged by the legal representatives of the deceased who have secured a valuable right on the abatement of the suit.
As mentioned earlier, the wife of the deceased is already in the party array in one of the Appeals and the son of the deceased Respondent is in the party array in two of the Appeals. Neither the counsel appearing for those Respondents nor the counsel who was appearing for the deceased Respondent informed the Tribunal about the demise of Shri. Anil Aggarwal at any point in time. Rule 10 A of Order 22 of the Code of Civil Procedure casts a duty on the pleader appearing for a party to the suit who comes to know of the death of that party, to inform the Court about his death and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist. Admittedly, the fact regarding death has not been intimated to the Tribunal either by the counsel who was appearing for the deceased or the other Respondents. Under the circumstances, it has to be held that the Respondent’s counsel did not fulfill his obligation under Rule 10 A of Order 22 of the C.P.C.
Hence, for the reasons stated above, I find that the applications will have to be allowed. The fact that the applicant has not filed a separate application for condonation of delay or for setting aside abatement will not be a reason to disallow the applications. Moreover, the provisions of C.P.C. are not entirely applicable to the proceedings before this Tribunal. There is no reason to be pedantic about the proceedings to be adopted while bringing on record the legal heirs of a deceased Respondent.
In the result, all the three applications I.A. Nos. 314, 315, and 316 of 2022 are allowed and the applicant is directed to carry out the amendment within two weeks.
Replies, if any, to the main Appeal shall be filed within two weeks with advance copy to other side.
Post on 22.08.2022 before the Registrar for compliance.