1991 ALLMR ONLINE 918

M.F. SALDHANHA, J.

VEENA R. RODKAR Vs. RUKMINI wd/o VASUDEO NARAYAN

W. P. No. 4106 of 1989

16th December, 1991

Petitioner Counsel: B. K. Raje
Respondent Counsel: C. Y. Bane, Y. G. Bane

Civil P.C. (1908),O. 22

JUDGMENT

JUDGMENT :- An unusual situation resulting in a curious position in law has arisen in this case which involves the application of Order 22, Rule 10A of the Code of Civil Procedure, 1908. An obligation has been cast on the advocate appearing for a deceased litigant that the Court be informed of such death; whereupon the Court shall give notice of such death to the other party. Where one of the Defendants has died and the intimation was not given to the Court by the pleader and in such circumstances the application for bringing the heirs on record was made at a very belated stage, whether the other Defendants and the legal heirs of the deceased Defendant can be permitted to urge that the delay that has occasioned ought not to be condoned and thereby take advantage of the lapse.

2. First the facts. The present Petitioner, who is the original plaintiff, filed R.A.E. Suit No. 1693 of 1974 in respect of the premises, namely, Block No. 5 on the second floor of Veena Ninadm 4/6, Karelwadi, Thakurdwar, Bombay-400 002, against the original Respondents Nos. 1 to 3, who were he heirs and legal representatives of the deceased tenant Vasudeo Narayan Prabhu-Khadpe who died in the year 1961. The suit was filed in the year 1974 on the ground of arrears of rent and permanent alterations in the suit premises. Only Respondent No. 1 filed a written statement and during the pendency of the suit Respondent No. 3 died on 10-8-1981. There is no dispute about the fact that Respondents Nos. 1 to 3 belonged to the same family. It is contendedin the petition that the plaintiff expected the advocate appearing on behalf of the Respondents to inform the Court about the death of Respondent No. 3 and the names and addresses of the legal heirs so that an application for bringing the heirs on record could be filed. Since this was not done, the plaintiff's advocate addressed a notice dated 17-2-1983 to the advocate for the Respondents requesting him to inform the date of death of the deceased Respondent No. 3 and the names and addresses of the legal heirs and representatives of the deceased. The concerned advocate, in his reply to the notice, stated thatthe Respondents were not liable to furnish the information as the plaintiff who is the present petitioner, knew about the death. This position was refuted by the petitioner's advocate. In April 1983, the petitioner took out Interim Notice No. 2938 of 1983 for bringing the heirs on record. It was pointed out that the notice has been taken out immediately after the Respondents' advocate furnished the requisite particulars. Apart from the contention that some of the heirs do not qualify as such for purposes of that proceeding, the petitioner contended in the application that the Respondents' advocate was duty bound under the provisions of Order 22, Rule 10A of the Code of Civil Procedure to have communicated the information regarding the death to the Court and, consequently, to furnish the names and addresses of the legal heirs, that since this was not done the plaintiff ought not to be penalised for the delay in making the said application.

3. The Respondents, who were the original Defendants, seriously contested the application. Firstly, they contended that the petitioner, who resides in the same building, was aware of the death when it took place in August 1981 and, therefore, did not require any separate intimation. They also contended that Order 22, Rule 10A of the Code of Civil Procedure cannot be pleaded as a defence for a delay of almost two years in presenting the application which ought to have been filed within an outer limit of 90 days and that, consequently, the application was liable to be rejected. The learned trial Judge, after hearing the parties, upheld the contention that the petitioner, who stays in the same building and who is alleged to have attended the funeral, must have known about the death and, therefore, could not take advantage of the fact that the Respondents had not intimated this fact to the Court. The learned Judge held that there was no valid explanation for the delay, that the application was time-barred and was liable to be rejected. It is against this order that the present petition has been filed.

4. Mr. Raje, learned Counsel appearing on behalf of the petitioner, has placed strong reliance on the provisions of Order 22, Rule 10A of the Code of Civil Procedure, which reads as follows :-

"10A. Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, 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."

He contends that this Rule 10A was introduced by way of an amendment and that the Rule casts a definite legal obligation on the advocate appearing for the deceased litigant to intimate to the Court about the death. Though no time-limit has been prescribed, Mr. Raje submits that it is presumed that the death of a client will come to the knowledge of the concerned advocate within the shortest possible time and that the advocate is required to intimate this fact to the Court before which the proceeding is pending. Once that fact is communicated, it is the duty of the Court to issue notice to the opposite party, obviously with the intention of affording that party an opportunity of taking steps to bring the legal heirs on record. Mr. Raje submits that having regard to this provision of law the limitation can only be computed from the date on which such notice is received from the Court and if the party fails to intimate the Court that no such notice is received, it would be wrong to compute the limitation from the date when the death has taken place. His subsidiary argument is that if it can be demonstrated that the opposite party had knowledge of the death and limitation is to run from that date, then there will have to be conclusive evidence before the Court of this fact. Thirdly, Mr. Raje submits that the Respondents were in error in having contended that the limitation must be computed from the date of death when, according to them, the petitioner knew about the sad event because, according to Mr. Raje, the requirements of Order 22, Rule 10A of the Code of Civil Procedure are mandatory and it is only on compliance of those requirements that the limitation can be computed. On facts, he states that the plaintiff, though resident in the same building, did not know about the death and, more importantly, that even if; she knew of the death what the Court has to take into account is that unless the names and addresses of the legal heirs were furnished by the advocate for the Respondents that her client was helpless in the matter of filing the requisite application for bringing the heirs on record.

5. Mr. Bane, learned counsel appearing on behalf of the Respondents, firstly, submits that, on facts, this Court must hold that the petitioner had knowledge of the death because she resides in the same building which consists of only three floors and that there is material on record to show that she had attended the funeral. He states that it would be equally valid to hold that the plaintiff would communicate this fact to her advocate and that in these circumstances if the application for bringing the heirs on record was not filed within the period of limitation, there could be no question of condonation of delay. Mr. Bane has relied on a decision of the Karnataka High Court in the case of Doddappa Maritammappa vs. Erappa Mudakappa, AIR 1982 Kant. 191, wherein the Court held that under Article 120 of the Limitation Act, 1963, the starting point of limitation for filing an application to bring the legal representatives of the deceased party on record is the date of the death of the party to the proceeding. The Court considered the scope of Order 22, Rule 10A of the Code of Civil Procedure in the light of the Law Commission's recommendations incorporated in the 54th report and held that there was nothing in Rule 10A from which the Court could conclude that it had the effect of providing any extension of the period of limitation. The Karnataka High Court observed that the limited ambit of Rule 10A was to the extent that it was meant to avoid a situation whereby a Court may find itself proceeding with a litigation against a party who is no longer alive or at its instance. To this extent, the Rule had no application with regard to the obligation of the opposite party to bring the legal heirs on record. Mr. Bane submits that this decision fully supports his argument that Order 22, Rule 10A of the Code of Civil Procedure is completely independent of the provisions of the Limitation Act.

6. That the limitation would commence from the date on which the death has occurred as provided in Article 120 of the Limitation Act is not in dispute. The issue involved in the present petition is a narrow question as to whether the application filed in April 1983, admittedly beyond the period of limitation, deserves to be entertained after condoning the delay. The moot point is the exact point of time when the plaintiff had knowledge of the death. Though one may reasonably presume that a resident of the very building would come to know of the death on the same day or shortly thereafter, there is nothing conclusive on record from which the Court could justifiably hold that the plaintiff must be fixed with such knowledge. In these circumstances, the importance of Order 22, Rule 10A of the Code of Civil Procedure becomes apparent.

7. It is necessary to note that Rule 10A obliges the advocate of the deceased litigant to inform the Court about the death. This is an obligation which has to be complied with. Admittedly, the Respondents' advocate at no time informed the Court about the death of Respondent No. 3. It is material to point out that the law does not require that the information be conveyed to the opposite party and that there is a very valid reason for it, namely, that once the Court is informed and the Court serves notice on the opposite party, the date of such knowledge is quite certain. In the absence of such Court intimation, we are pushed back to a situation of the present type where there is total ambiguity and vagueness with regard to the factum of knowledge. To my mind, therefore, if the respondents have breached the duty cast on them by the law, they would be estopped from contending that the Court ought not to condone the delay. In the present circumstances, therefore, the Court would have been justified in holding that there was nothing on record to prevent the Court from holding that the petitioner came to know about the death around February 1983 when her advocate wrote and asked for particulars about the same and, more importantly, that she came to know of the names of the legal heirs only when these were furnished around April 1983. In this view of the matter, to my mind, the learned Judge was in error in having refused to condone the delay, apart from the fact that in cases of this type a liberal view is required to be taken. What is of more importance is the fact that the rules of procedure are enacted to further the cause of justice and not to create obstacles in their way or to impede it. In the present case, if the delay is not condoned, it would involve a fresh suit and one more round of litigation, both of which need to be avoided.

8. If would be useful in this regard to advert to a decision of the Supreme Court in the case of Bhagwan Swaroop vs. Mool Chand, AIR 1983 SC 355, wherein D. A. Desai, J. observed :-

"But the laws of procedure are devised for advancing justice and not impeding the same. Code of Procedure is designed to facilitate justice and further its ends, not a penal enactment for punishment and penalties; not a thing designed to trip people up."

While disapproving the adoption of a hypertechnical approach, the Supreme Court observed that such an approach "if carried to end may result in miscarriage of justice. If the trend is to encourage fairplay in action in administrative law, it must all the more inhere in judicial approach. Such applications have to be approached with this view whether substantial justice is done between the parties or technical rules of procedure are given precedence over doing substantial justice in Court. Undoubtedly, justice according to law; law to be administered to advance justice."

9. A subsidiary submission canvassed by Mr. Raje is to the effect that assuming that it was held that the plaintiff had knowledge of the death, then, according to him, the exemption prescribed under Order 22, Rule 4(4) of the Code of Civil Procedure would apply. To this extent, he submitted that the question of either applying for condonation of delay or substituting the legal heirs would not arise. This contention has been strongly opposed by Mr. Bane on behalf of the Respondents, who rightly pointed out that the provisions of Order 22, Rule 4(4) of the Code of Civil Procedure would not apply to this case at all because it is not a proceeding where the Defendants are not contesting. Furthermore, he has relied on a decision of the Calcutta High Court in the case of Corpn. of Calcutta vs. Himansu Sekhar Basu, AIR 1987 Cal. 58, wherein the Court observed that such exemption cannot be granted if the plaintiff has taken necessary steps for bringing the heirs on record.

10. On an overall view of the matter, what emerges, therefore, is that the impugned order of the trial Court is set aside. The application of the petitioner for bringing the heirs on record is granted. The petitioner shall carry out the necessary amendments within a period of 4 (four) weeks from the date of receipt of the writ by the trial Court. The trial Court shall thereafter proceed with the matter and dispose of the case according to law. The rule is accordingly made absolute with no order as to costs.

Order accordingly.