Case Note & Summary
The petitioners, original appellants in Regular Civil Appeal No.524 of 1996, filed a writ petition challenging the order dated 9/12/2010 passed by the learned District Judge-3, Sangli, rejecting their application (Exhibit 27) for bringing the heirs of the deceased respondent on record. The suit for injunction and alternatively for possession was filed on 11/6/1990 and dismissed on 20/9/1996. The father of the petitioners filed the appeal against dismissal. During the pendency of the appeal, the original respondent died on 28/2/2000. The petitioners filed the application for bringing heirs on record on 25/2/2010, claiming they learned of the death only in 2009 when they obtained a death certificate from the Sangli-Kupwad Municipal Corporation. The delay was attributed to their being laymen unaware of legal niceties. The Lower Appellate Court rejected the application on the ground of no justifiable reason for condonation of delay. The High Court, after hearing both sides, held that the application was composite for condonation of delay and bringing heirs, and that a separate application to set aside abatement was not necessary. The court relied on Mithailal Dalsangar Singh v. Annabai Devram Kini (2003) 10 SCC 691 and Perumon v. State of Kerala (2008) 8 SCC 321, emphasizing a liberal approach. The court noted that the respondent's pleader did not communicate the death as required by Order 22 Rule 10A CPC. The impugned order was set aside, the application was allowed, and the Lower Appellate Court was directed to proceed with the appeal on merits.
Headnote
A) Civil Procedure Code - Order 22 Rule 10A - Duty of pleader to communicate death - The pleader of the deceased party is obligated to inform the court and the opposite party about the death. Non-compliance may justify condonation of delay. (Para 6)
B) Civil Procedure Code - Order 22 Rule 9 - Abatement - Setting aside abatement - A composite application for condonation of delay and bringing legal representatives on record, if allowed, impliedly sets aside abatement. Technical approach is not called for. (Para 6)
C) Limitation Act, 1963 - Section 5 - Condonation of delay - Sufficient cause - Delay of about 10 years in filing application to bring heirs on record was condoned as the petitioners were laymen and unaware of legal procedures, and the death was not communicated by the respondent's pleader. (Paras 6-7)
Issue of Consideration
Whether the Lower Appellate Court erred in rejecting the application for bringing heirs on record and condonation of delay, and whether a composite application for condonation of delay and bringing heirs is sufficient without a separate application to set aside abatement.
Final Decision
The impugned order dated 9/12/2010 passed by the learned District Judge-3, Sangli is set aside. The Application (Exhibit 27) filed by the petitioners is allowed. The Lower Appellate Court is directed to proceed with Regular Civil Appeal No.524 of 1996 on merits. Rule made absolute accordingly.
Law Points
- Condonation of delay
- Bringing legal representatives on record
- Abatement
- Order 22 Rule 10A CPC
- Liberal approach
- Sufficient cause
Case Details
2012 LawText (BOM) (08) 39
Writ Petition No.2166 of 2011
Mr. Vishwanath Talkute for the Petitioners, Mr. Nitesh Bhutekar for the Respondent Nos.1 to 5
Vasant Jagannath Malkar Teli & ors.
Parvati Ananda Phatak and ors.
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Nature of Litigation
Writ petition challenging the rejection of an application for bringing heirs on record in a pending civil appeal.
Remedy Sought
The petitioners sought to set aside the impugned order and allow their application for bringing the heirs of the deceased respondent on record, with condonation of delay.
Filing Reason
The Lower Appellate Court rejected the application for bringing heirs on record on the ground of delay without considering the composite nature of the application and the lack of communication of death by the respondent's pleader.
Previous Decisions
The suit was dismissed on 20/9/1996. The appeal was filed by the petitioners' father. The respondent died on 28/2/2000. The application for bringing heirs was filed on 25/2/2010 and rejected by the Lower Appellate Court on 9/12/2010.
Issues
Whether the Lower Appellate Court erred in rejecting the application for bringing heirs on record and condonation of delay.
Whether a composite application for condonation of delay and bringing heirs is sufficient without a separate application to set aside abatement.
Submissions/Arguments
Petitioners argued that the application was composite and should have been allowed; the death was not communicated by the respondent's pleader as per Order 22 Rule 10A CPC; reliance on Mithailal Dalsangar Singh v. Annabai Devram Kini and Perumon v. State of Kerala.
Respondents opposed the application, contending that the right to sue did not survive and the delay was not justified.
Ratio Decidendi
A composite application for condonation of delay and bringing legal representatives on record, if allowed, impliedly sets aside the abatement. A separate application for setting aside abatement is not necessary. The court should adopt a liberal approach, especially when the death was not communicated by the opposite party's pleader as required by Order 22 Rule 10A CPC.
Judgment Excerpts
The learned counsel would contend that the information of the death of the Respondent was not communicated to the advocate for the Appellants as mandated by Order 22 Rule 10A of the Code of Civil Procedure.
It has been held by the Apex Court in Para 8 of the said Report that a prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied.
Procedural History
Suit filed on 11/6/1990, dismissed on 20/9/1996. Appeal filed by petitioners' father as Regular Civil Appeal No.524 of 1996. Respondent died on 28/2/2000. Application for bringing heirs filed on 25/2/2010. Lower Appellate Court rejected application on 9/12/2010. Writ Petition filed on 23/8/2012.
Acts & Sections
- Code of Civil Procedure, 1908: Order 22 Rule 10A, Order 22 Rule 9
- Limitation Act, 1963: Section 5
