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Thursday, May 9, 2013

Or.1, rule 10 is maintainable when defendant's counsel failed to intimate the death of the defendant with in time to court and to the plaintiff : No suit abated totally on the death of one of the defendant while other defendants are on record : or.22, rule 4, 10 A and or.1C.P.C. AND,art.120,121 limitation act and order 1 rule 10 cpc ="The suit was originally instituted by one plaintiff i.e., petitioner herein, against two defendants. When the 2nd defendant died, petitioner took prompt steps by filing I.A.No.810 of 2004 and the legal representatives were brought on record as defendants 3 to 9. The 1st defendant is said to have died on 31.07.2001 long before I.A. No.810 of 2004 was filed. Had the petitioner been aware of the factum of the death of the first defendant, he would have certainly taken steps to bring the legal representatives of the 1st defendant on record. The record discloses that defendants 1 and 2 were represented by the same counsel in the trial Court. Rule 10-A of Order XXII C.P.C. places an obligation on the counsel to inform the Court as well as the other party, whenever his client dies, during the pendency of the proceedings. This Court has taken view in several matters that the limitation to file an application to bring the legal representatives of a party to the suit, on record would commence from the date, on which the other party in the suit, receives the intimation through a memo filed under Rule 10-A of Order XXII C.P.C. That having not been done in this case, the proposed respondents cannot resist the attempts made by the petitioner to bring the legal representatives on record, or to implead them as defendants.


ITEM NO.53 COURT NO.3 SECTION XIIA


S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Civil) No(s).14997/2013

(From the judgement and order dated 31/01/2013 in CRP No.6363/2012 of The
HIGH COURT OF A.P AT HYDERABAD)

JAYARAMA REDDY & ORS. Petitioner(s)

VERSUS
N. SANKAR REDDY Respondent(s)

(With prayer for interim relief)

Date: 03/05/2013 This Petition was called on for hearing today.

CORAM :
HON'BLE MR. JUSTICE G.S. SINGHVI
HON'BLE MRS. JUSTICE RANJANA PRAKASH DESAI

For Petitioner(s) Mr.A.T.M.Rangaramanujam, Sr.Adv.
Mr.Prakhar Sharma, Adv.
Ms.Anu Gupta, A.O.R.

For Respondent(s)

UPON hearing counsel the Court made the following
O R D E R

This petition is directed against order dated 31.01.2013 passed
by the learned Single Judge of the Andhra Pradesh High Court whereby he
allowed the revision filed by the respondent, set aside order dated
6.11.2012 passed by Ist Additional Junior Civil Judge, Chittoor in
I.A.No......./2012 (CF No.13916/2012 in OS No.1148/1998) and granted the
prayer made by the plaintiff- respondent for impleadment of the legal
representatives of defendant No.1 as defendant Nos.10 to 15.
We have heard Shri A.T.M. Rangaramanujam, learned senior
counsel for the petitioners and perused the record.
Respondent N. Sankar Reddy filed suit (OS No.1148/1998) against
N. Rami Reddy and Sivalinga Reddy (predecessor of the petitioners herein)
for declaration of title and perpetual injunction. During the pendency of
the suit, defendant No.2 died and in his place defendant Nos.3 to 9 were
added as parties vide order dated 26.7.2004. After some time, defendant
No.1 also died and the respondent filed I.A. No.341/2003 for condonation of
delay of 506 days in filing of an application under Order 22 Rule 4 CPC.
The trial Court dismissed the application on the ground of delay and the
order of the trial Court was upheld by the High Court while dismissing CRP
No.3201/2003 filed by the respondent.

Soon after dismissal of the revision filed by the respondent,
the petitioners filed IA No.523/2004 for dismissal of the suit on the
ground that due to non-impleadment of the legal representatives of
defendant No.1, the same had abated. That application was allowed by the
trial Court on 9.9.2004. 
CRP No.5158/2004 filed by the respondent was
partly allowed by the High Court and the parties were given liberty to
agitate the issue of abatement at the time of disposal of the suit. 
The
appeal filed against the abatement order was also allowed by the High Court
vide order dated 28.12.2011 and the matter was remanded to the trial Court
for fresh disposal of the suit.
After remand, the respondent filed CF No.13916/2012 under Order
1 Rule 10 CPC, which was dismissed by the trial Court vide order dated
6.11.2012 on the ground that the revision filed by the respondent against
the rejection of the prayer made in I.A. No.341/2003 had been dismissed by
the High Court.
The respondent challenged the trial Court's order in CRP
No.6363/2012. The learned Single Judge entertained and allowed the same by
making the following observations:
"The suit was originally instituted by one plaintiff i.e.,
petitioner herein, against two defendants. When the 2nd
defendant died, petitioner took prompt steps by filing
I.A.No.810 of 2004 and the legal representatives were brought on
record as defendants 3 to 9. 

The 1st defendant is said to have
died on 31.07.2001 long before I.A. No.810 of 2004 was filed.
Had the petitioner been aware of the factum of the death of the
first defendant, he would have certainly taken steps to bring
the legal representatives of the 1st defendant on record.


The record discloses that defendants 1 and 2 were represented by
the same counsel in the trial Court.

 Rule 10-A of Order XXII
C.P.C. places an obligation on the counsel to inform the Court
as well as the other party, whenever his client dies, during the
pendency of the proceedings. 

This Court has taken view in
several matters that the limitation to file an application to
bring the legal representatives of a party to the suit, on
record would commence from the date, on which the other party in the suit, receives the intimation through a memo filed under
Rule 10-A of Order XXII C.P.C. 

That having not been done in
this case, the proposed respondents cannot resist the attempts
made by the petitioner to bring the legal representatives on
record, or to implead them as defendants.



It is at the instance of respondents 3 to 9 that the trial Court
declared that suit stood dismissed as abated. 

A decree to that
effect was passed on 09.09.2004. 

The petitioner was rightly
advised to file revision as well as an appeal. 

The reason is
that the decree came to be passed in the suit as a consequence
of the order in I.A.No.523 of 2004. 

That order could have been
challenged only by filing revision. 

Since a decree has also been
passed, remedy of appeal must be availed, before lower appellate
Court.

 In both the proceedings, the petitioner was
successful. The result is that the suit remained on the file of
trial Court.



This Court made it amply clear in its order passed in the C.R.P.
that the question as to 

whether the death of the 1st defendant
resulted in abatement must be examined independently.

 It is not
a case, where the sole defendant in the suit died.

 Defendants 3
to 9 were very much on record. 

Till now, no such effort was
made. 

The presumption is that the suit remained unabated and
that at the most, abatement is vis-a-vis the 1st defendant. 

Now
that the efforts are being made to bring the legal
representatives of the first defendant on record, there should
not be any plausible objection. 

In case, such of the
respondents, who are the legal representatives of the 1st
defendant oppose the effort made by the petitioner to implead
them in the suit, a presumption has to be drawn to the effect
that they do not have any resistance to the offer and the
decree, if any, that may be passed in the suit shall bind them
also.



It may be true that there was some uncertainty in the matter as
to the status of the suit, in the light of the orders passed by
this Court and the lower appellate Court.



However, the trial Court ought to have numbered the I.A. and
heard the same on merits. 

Instead, a cryptic order, which does
not make any sense, has been passed. 

Portions of the order are
in fact derogatory. It reads:


"Rejected 

the Hon'ble High Court in C.F.No.5158/2004 given a
direction stating that I.A.423/04 in O.S.No.1148/98 has to be
agitated by the parties at the time of disposal of the suit 

theHon'ble IX AD], CTR in A.S.No.151/05 relating to OS.No.
1148/1998 instructed the court to consider the suit on merits as
per order in Hon'ble High Court by giving the opportunity to the
parties to agitate the question involved in I.A.No.523/04 at the
time of the disposal of the suit. 

Neither the High Court 
nor IX AD], CTR has directed the court to conduct the . . . trial or to
take further evidence on either side. 

Therefore
petitioner/plaintiff is not entitled to file the present
petition. Therefore, this petition is not maintainable and this
petition is rejected." (Verbatim reproduction)



Learned Presiding Officer ought to have bestowed proper
attention while dealing with the matter of this nature. 

It is
only gross negligence or total indifference or lack of basics on
the part of the officer, that bring about such a hopelessly bad
order. 

It is hoped that the officer would not permit such
instances to recur.



In our view, the reasons recorded by the learned Single Judge
for setting aside the order of the trial Court and allowing the application
filed by the respondent under Order 1 Rule 10 CPC are legally correct and
the impugned order does not suffer from any patent legal infirmity
requiring interference under Article 136 of the Constitution.
The special leave petition is accordingly dismissed.



(Satish K.Yadav) (Phoolan Wati Arora)
Court Master Court Master

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