Case Note & Summary
The Petitioner, Ida Fernandes, was the original Plaintiff in Suit No. 9046 of 2000 pending before the Bombay City Civil Court. She filed Chamber Summons No. 2836 of 2013 to bring the legal heirs of deceased Defendant Nos. 2 and 4 on record. Defendant No. 2 died on 21 March 2005 and Defendant No. 4 died on 28 December 2008. The Plaintiff explained the delay in filing the application by stating that the defendants' advocates did not inform her of the deaths as required by law. The Trial Court, however, rejected the Chamber Summons on the ground that the Plaintiff, being a relative of the deceased defendants, must have been aware of their deaths, and therefore the application was delayed. The High Court found that the Trial Court had wholly misdirected itself. It noted that Order XXII Rule 10A of the Code of Civil Procedure, 1908 casts a duty on the pleader appearing for a party to inform the court of the death of that party, and the court must then give notice to the other party. The rule creates a deeming fiction that the contract between the pleader and the deceased party subsists for this purpose. The High Court held that the Trial Court erred in assuming knowledge on the part of the Plaintiff without considering the statutory obligation of the pleader. The impugned order was set aside, and the Chamber Summons was allowed. The legal heirs of Defendant Nos. 2 and 4 were directed to be brought on record within four weeks. The suit was directed to be expedited and disposed of within one year.
Headnote
A) Civil Procedure - Bringing Legal Heirs on Record - Order XXII Rule 10A Code of Civil Procedure, 1908 - Duty of Pleader to Communicate Death - The Trial Court rejected the Plaintiff's application to bring legal heirs of deceased defendants on record solely on the ground that the Plaintiff, being a relative, must have known of the deaths. The High Court held that the Trial Court misdirected itself by ignoring the statutory duty cast on the pleader under Order XXII Rule 10A CPC to inform the court of the death of a party, and the court's obligation to then notify the other party. The delay in filing the application was sufficiently explained by the Plaintiff's lack of knowledge due to non-communication by the defendants' pleader. (Paras 4-6)
Issue of Consideration
Whether the Trial Court erred in rejecting the Plaintiff's application to bring legal heirs of deceased defendants on record on the ground of delay, without considering the duty of the pleader under Order XXII Rule 10A CPC to inform the court of the death of a party.
Final Decision
The impugned order dated 27 August 2015 is set aside. Chamber Summons No. 2836 of 2013 is allowed. The legal heirs of Defendant Nos. 2 and 4 shall be brought on record within four weeks from today. The suit is expedited and shall be disposed of as expeditiously as possible and in any event within one year from today. Rule is made absolute in the aforesaid terms with no order as to costs.
Law Points
- Duty of pleader to communicate death of party to court
- Order XXII Rule 10A CPC
- Deeming fiction of subsisting contract
- Limitation for bringing legal heirs on record
- Sufficient cause for delay
