When an appeal will not abate even if legal heir of one of the parties is not brought on record?

 Learned counsel for the appellant has placed reliance on the case reported as 2009 (2) Mh.L.J. 1 : [2008 ALL SCR 1944] (P.B. Devaswom v. Bhargavi Amma). In this case the Apex Court has discussed the provisions of Order XXII Rules 9 and 11 of the Code of Civil Procedure Code and Section 5 of the Limitation Act in paragraph 13. Para 13 reads thus :-

"13. Thus it can safely be concluded that if the following three conditions exist, the Courts will usually condone the delay, and set aside the abatement (even though the period of delay is considerable and a valuable right might have accrued to the opposite party - LRs of the deceased - on account of the abatement):

(i) The respondent had died during the period when the appeal had been pending without any hearing dates being fixed;

(ii) Neither the counsel for the deceased respondent nor the Legal Representatives of the deceased respondent had reported the death of the respondent to the Court and the Court has not given notice of such death to the appellant;

(iii) The appellant avers that he was unaware of the death of the respondent and there is no material to doubt orcontradict his claim." {Para 10}

12. The Apex Court has held that in view of this provision the Court can decide to proceed ex parte even after death of a defendant without Legal Representative of deceased defendant if parameters of Order XX Rule 4(4) CPC are complied with. The object behind this provision needs to be kept in mind and the power given to the Court can be used in a case like present one.

13. In view of the facts and circumstances of the present case, this Court hold that the aforesaid provisions can be used in the present case. Thus, it cannot be said that the appeal is liable to dismissed. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

T. V. NALAWADE, J.

Prabhakar s/o. Apparao Pawar & Anr. Vs. Vaijnath s/o. Babarao Pawar & Ors.

Civil Application No.12021 of 2012,Civil Application No.8010 of 2013,Second Appeal No.117 of 2011

13th March, 2014.

Citation: 2015(4) ALL MR 273

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Whether it is necessary to bring on record legal heirs of retired partner of partnership firm?

The Suit is instituted by the plaintiff against the heirs and legal

representatives, if any, of i) Jamnadas Jinabai Popat and (ii) Manilal Virji

Mehta. The Suit instituted against unknown heirs and legal representatives

itself, is not maintainable. In support of this submission, he invited my

attention to Order 22, Rule 4 and 4-A of the C.P.C. He relied upon the

decision of the learned Single Judge of this Court in the case of Donald

Gonsalves Vs. Penha de Franca Youth Club, 2002 (3) ALL MR 814.

 On the other hand, Mr. Dhakephalkar supported the impugned

orders. He invited my attention to the written statement filed on behalf of

the defendants and it is to the following effect:

“Written statement of heirs and legal representatives of Manilal

Virji Mehta defendant No.1(2), defendant No.2 and defendant

No.3.”

6. He also invited my attention to the affidavit of Virendra Kishorlal

Mehta, partner of M/s. National Traders. The affidavit of examination-inchief

was filed on behalf of the heirs of Manilal Virji Mehta and on behalf

of defendant Nos.2 and 3. He submitted that Jamnadas Jinabai Popat and

Manilal Virji Mehta were joint tenants in respect of the suit premises. They

had formed a partnership firm namely J. M. Electricals. On 19.07.1975,

Jamnadas Popat retired and renounced his rights as joint tenant from the

suit premises. On 30.07.1975, Manilal Mehta started a new firm by name

National Traders with Virendra Mehta. In May 1977, Manilal Mehta also

retired from National Traders and Virendra Mehta and his brothers

continued the business. On 01.04.1981, Virendra Mehta and one Rajul

opened new firm by name Alka Industries (defendant No.3).

7. Mr. Dhakephalkar also invited my attention to the paragraph 3 of the

affidavit of Virendra Mehta wherein he deposed that Jamnadas Popat retired

from the partnership in 1975 (there is a typographical error to the effect that

Manilal Virji Mehta retired from the partnership in 1975). The deed of

retirement dated 19.07.1975 executed by and between Jamnadas Popat,

Bharatkumar Jamndas Popat as continuing partners and Manilal Virji Mehta

as retiring partner was produced on record. In other words, Mr.

Dhakephalkar submitted that from 19.07.1975, Jamnadas retired from the

partnership and also renounced his rights as a joint tenant of the suit

premises. He, therefore, submitted that the submission that the Suit was

instituted against the unknown heirs and legal representatives of Jamnadas

Popat and Manilal Mehta does not merit any consideration.

IN THE HIGH COURT OF JUDICATURE AT MUMBAI

CIVIL APPELLATE JURISDICTION

CIVIL REVISION APPLICATION NO.255 OF 2013

Virendra Kishorlal Mehta and others  Vs. Keshavsingh Dwarkadas Kapadia and others 

CORAM : R. G. KETKAR, J.

DATE : 27TH AUGUST, 2013

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Whether order of abatement can be altered at subsequent point of time?

Needless to mention that the order of abatement is not so sacrosanct or inviolable that the same cannot be altered at a subsequent point of time inspite of sufficient cause being shown by the plaintiffs or any other party to the suit. If the party to the suit is able to satisfy the Court that the requirements of Rule 4A or Rule 4(4) are attracted in a given case then the Court may in its inherent powers pass appropriate orders including an order of setting aside abatement on such ground. If the aforesaid rules permit prosecution of the suit in absence of legal representatives of the deceased party, and yet the judgment passed would bind the estate of such deceased party, then surely it would be preposterous to contend that suit against such a person would abate in law. Both these situations would be antithesis to each other. In my view it would defeat the legislative intent behind the Amendment Act of 1976.

11. Understood thus, the Court below ought to examine the subject application in wider perspective. In such a situation, to do substantial justice to the parties the Court ought to exercise inherent powers under section 151 of the Code of Civil Procedure and pass appropriate orders. Incase defendants 2 to 5 are justified in contending and there is material on record to support the contention that they were the heirs of deceased Pragji and could represent the estate of the defendant No. 1 the Court could suitably modify the abatement order and permit the defendants 2 to 5 to represent the estate of defendant No. 1. All questions are left open to be decided by the Trial Court. The Court may re-examine the application in the wake of observations made hereinbefore and decide the same in accordance with law.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6294 of 1995

Decided On: 28.06.2001

Gulabben wd/o Chimanlal Maniar and Ors. Vs. Narendra Balchandra and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

Citation: 2001 Vol 103(4) BOM L R 540

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Whether court can exempt plaintiff from bringing legal heirs of deceased defendant on record without hearing his legal heirs?

However, what needs to be considered in the present case is whether the discretion conferred on the Court under sub-rule (4) of Rule 4 of Order 22 of C.P.C. should be exercised to grant an exemption to the plaintiff from substituting the legal representatives of the defendant No. 4. It may be born in mind that the normal rule of any suit or a judicial proceeding is that a party should be heard before any order or judgment is passed against him. It is this requirement which is reflected in sub-rule (1) of Rule 4 of Order 22 of the C.P.C. which requires legal representatives of the deceased defendant to be substituted in his place so that they have an opportunity of being heard. Sub-rule (4) is an exception to sub-rule (1), which empowers the Court to dispense with the requirement of substituting the legal representatives of a deceased defendant. The power can be exercised only where the deceased defendant had not filed a written statement or after having filed it had failed to appear to contest the suit. It may be noted that even if the written statement is not filed, the defendant is entitled to appear and (without being entitled to adduce any evidence) is entitled to show that on the facts pleaded and proved by the plaintiff he is not entitled to a decree. Since even a defendant who has not filed a written statement in the suit has a right of cross-examining the plaintiff's witnesses, the permission of not substituting the legal representatives of the deceased defendant on record should not be granted lightly, because by grant of the permission the right of the legal representatives of being heard is hampered.

IN THE HIGH COURT OF BOMBAY

Chamber Summons No. 296 of 2006 in Suit No. 3320 of 1985

Decided On: 05.02.2007

Reliance Consultancy Services Ltd. Vs. Metro Palutan Investment and Ors.

Hon'ble Judges/Coram:

D.G. Karnik, J.

Citation: 2007(5) Bom C R 475

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Whether date of knowledge of death of party is relevant for deciding delay condonation application?

We are of the view that the order passed by the learned Single Judge is unsustainable in law. The delay in taking out the application has to be computed from the date of knowledge of the death of a party. It is the case of the appellants that they had no knowledge and as soon as they acquired knowledge, they took out application for bringing legal heirs on record. This aspect as regards knowledge is not seriously disputed by the respondent. Secondly, it is now well settled that the provisions of Order 22, Rule 1, Civil Procedure Code are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspect of law. In the aforesaid circumstances, we are of the view that the learned Single Judge was in error in refusing to use discretion vested in him for condoning delay in taking out application for bringing legal heirs on record. Even if proceeding abates, the Court has ample powers to set aside the abatement, and condone the delay to bring legal heirs on record.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

L.P.A. No. 81 of 1993 in W.P. No. 2571 of 1991

Decided On: 28.10.2004

 Keshao s/o Kawadu Maral and Anr. Vs.State of Maharashtra and Ors.

Hon'ble Judges/Coram:

V.C. Daga and S.U. Kamdar, JJ.

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Supreme Court: Whether the court can permit setting aside of abatement of suit or appeal even in absence of specific application in that regard?

In as much as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside abatement. So also a prayer for setting aside abatement as regard one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. Once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abateed, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. 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. Too technical or pedantic an approach in such cases is not called for.

The courts have to adopt a justice oriented approach dictated by the upper most consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the court. The opinion of the trial Judge allowing a prayer for setting aside abatement and his finding on the question of availability of 'sufficient cause' within the meaning of sub-rule(l) of Rule (9) of Order 22 and of Section 5 of the Indian Limitation Act, 1963 deserves to be given weight, and once arrived at would not normally be interfered with by superior jurisdiction.

In the present case, the learned trial judge found sufficient cause for consideration of delay in moving the application and such finding having been reasonably arrived at and based on the material available, was not open for interference by the Division Bench. 

In Maria Flaviana Almeida & Ors. 's case (supra), Chief Justice Beaumont speaking for the Division Bench observed that an order setting aside an abatement is really one in procedure. The party originally had a cause of action which through no fault of their own came to an end by the death of their opponent and the effect of setting aside the abatement is merely to excuse delay in restoring the suit to an actionable condition. The Division Bench held that the order setting aside an abatement does not effect the merits of the dispute between the parties though it certainly determines a right and, therefore, does not amount to a 'judgment'.

Supreme Court of India

Mithailal Dalsangar Singh And Ors vs Annabai Devram Kini And Ors on 16 September, 2003

Bench: R.C. Lahoti, Ashok Bhan
Citation: 2003 Supp(3) SCR 822 

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Whether legal heirs of defendant who was dead at time of filing of suit can be brought on record?

 In the present case it is the admitted position that some of the defendants are alive and it is not as if defendant No. 1 was the only real defendant in the suit and in such a case, in my view, it is the settled position as shown by the decisions referred to earlier, that the mere fact that one of the defendants was dead at the time of the institution of the suit does not render the suit a total nullity so that the heirs of the deceased defendant cannot be brought on record at all. It is nobody's case that the application for bringing the heirs of the deceased defendant No. 1 on record is not made bona fide. It is true that there has been some delay in making the application but as, the facts set out earlier clearly show, it was only in January 1982 that the addresses of the respondents were furnished to the plaintiff by the learned advocate for defendant No. 2 and the chamber summons has been taken out as early as 24th Feb., 1982, hence,there is no such delay as would defeat the application of the plaintiff.

Bombay High Court

Nevandram Javermal vs Devikabai Haridas Gandhi And Ors. ... on 29 March, 1982

Equivalent citations: AIR 1982 Bom 589

Bench: Kania

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Whether legal representatives of defendant who died prior to filing of suit can be added as party to suit?

As mentioned supra, it is only if a Defendant dies during the pendency of the suit that the provisions of Order 22 Rule 4 of the Code can be invoked. Since one of the Defendants i.e. Defendant No. 7 has expired prior to the filing of the suit, there is no legal impediment in impleading the legal representatives of the deceased Defendant No. 7 Under Order 1 Rule 10 of the Code, for the simple reason that the Plaintiff in any case could have instituted a fresh suit against these legal representatives on the date he moved an application for making them parties, subject of course to the law of limitation. Normally, if the Plaintiff had known about the death of one of the Defendants at the time of institution of the suit, he would have filed a suit in the first instance against his heirs or legal representatives. The difficulty that the High Court experienced in granting the application filed by the Plaintiff Under Order 1 Rule 10 of the Code discloses, with great respect, a hyper-technical approach which may result in the miscarriage of justice. As the heirs of the deceased Defendant No. 7 were the persons with vital interest in the outcome of the suit, such applications have to be approached keeping in mind that the Courts are meant to do substantial justice between the parties and that technical Rules or procedures should not be given precedence over doing substantial justice. Undoubtedly, justice according to the law does not merely mean technical justice but means that law is to be administered to advance justice.

15. Having regard to the totality of the narration made supra, there is no bar for filing the application Under Order 1 Rule 10, even when the application Under Order 22 Rule 4 of the Code was dismissed as not maintainable under the facts of the case. The legal heirs of the deceased person in such a matter can be added in the array of parties Under Order 1 Rule 10 of the Code read with Section 151 of the Code subject to the plea of limitation as contemplated Under Order 7 Rule 6 of the Code and Section 21 of the Limitation Act, to be decided during the course of trial.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 15549 of 2017 (Arising out of SLP (C) No. 31212 of 2014)

Decided On: 03.10.2017

Pankajbhai Rameshbhai Zalavadia Vs. Jethabhai Kalabhai Zalavadiya (deceased) 

Hon'ble Judges/Coram:

Arun Mishra and Mohan M. Shantanagoudar, JJ.

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Whether suit is maintainable against unknown legal heirs?

 As regards the unknown legal heirs and representatives of Fateh Bahadur Shrivastava, named as such, in the plaint, the learned counsel seeks leave to take out a fresh summons for judgment. Without going into the issue as to whether such leave can be granted at the hearing of the Summons for Judgment, in the facts and circumstances such leave has to be refused. The person against whom the suit is instituted is required to be joined as party to the suit. The learned counsel for the plaintiff stated that despite the efforts, the plaintiff was unable to know even names of other heirs of the deceased Fateh Bahadur Shrivastava, leave apart their addresses. Despite notices given to him, the defendant No. 1 is not willing to disclose the names of the other heirs and therefore, the plaintiff was helpless and had joined "Unknown legal heirs of Fateh Bahadur Shrivastava" as defendant No. 2 and she may be permitted to add their names as and when the names of heirs are discovered. The learned counsel for the plaintiff relies upon a judgment of this Court rendered in V.B. Kapadia v. Nirmala, D/o Atmaram Laxman Chowdhary, (Civil Revision Application No. 5423/61 decided on 22nd January 1962 by Patel, J.). In that case, there are some observations which do support the contention that a suit can be instituted under certain circumstances in the name of "Unknown heirs of deceased." In the very judgment, the learned single Judge has observed as follows:

"Though, therefore, I agree with Mr. Justice Naik as held by him in Civil Revision Application No. 491/59 (decided on 19/21st July, 1960) that heirs should and ought to be named in view of the peculiar circumstances of the case. I am not prepared to hold that the decree was in nullity."

The proposition laid down by Naik, J. in Civil Revision Application No. 491/59 that heirs should and ought to be named in the plaint was accepted as a correct proposition and I respectfully agree with the said proposition.

5. The peculiar circumstances which existed in V.B. Kapadia's case (Civil Revision Application No. 543/61), do not exist in the present case. In paragraph No. 3 of the plaint, the plaintiff has stated that the deceased Fateh Bahadur Shrivastava was her family friend indicating therein that the two families knew each other. If so, there is no reason why the plaintiff was unable to give the names of his heirs. In my opinion, therefore, the suit against defendant No. 2 i.e. "Unknown heirs of Fateh Bahadur" is not maintainable. As the suit is not maintainable, leave carved by the plaintiff for taking out fresh Summons for Judgment against defendant No. 2 cannot be granted.

Bombay High Court

Smt. Sheel Arora vs Sanjay Fetah Bahadur Srivastava on 19 November, 2003

Equivalent citations: AIR 2004 Bom 99

Bench: D Karnik

Citation:AIR 2004 Bom99

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When court will permit bringing legal heirs of deceased on record after ninety days of receipt of report of his death?

Albeit the provisions of Code of Civil Procedure do not ipso facto apply to the proceedings before the Rent Control Tribunal constituted under the Rajasthan Rent Control Act, 2001, yet principles enumerated therein have to be applied for reasons of justice, equity and good conscience. Order 22 Rule 10A CPC mandates that on the death of a defendant/respondent before the trial Court/appellate Court, it is incumbent upon his counsel to inform the concerned Court with regard to the factum of the death of the defendant/respondent and also detail the legal representatives of the deceased such that they could be brought on record to continue with the proceedings before the concerned Court. In the present case, even though Mool Chand apparently expired on 19.08.2008 during the pendency of the trial of the eviction petition itself, no information was supplied by his counsel of his death to the Tribunal and counsel continued to represent Mool Chand before the Rent Tribunal. In the meantime, the trial was concluded and the plaintiff's eviction suit dismissed. Consequently, the plaintiff filed an appeal before the Appellate Rent Control Tribunal against the dismissal of the suit vide judgment dt. 28.04.2011 passed by the Rent Control Tribunal impleading the original defendants in the eviction suit as respondents in the appeal. It was only on 14.10.2011 when efforts were made to serve Mool Chand, he was found to have expired. This fact came to the notice of the plaintiff on 14.10.2011 as per report of the process server on the appeal file. Within 90 days therefrom, the substitution application under Order 22 Rule 4 read with Section 151 CPC was filed.

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

S.B. Civil Revision Petition No. 67/2013

Decided On: 02.12.2013

 Ramu  Vs.  Daulat Motiyani

Coram:

Alok Sharma, J.

Citation:AIR 2014(NOC)259 Raj

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Whether land acquisition can be abated if legal heirs of deceased claimant are not brought on record within limitation?

Another argument which was advanced on behalf of the respondent was to the effect that the substitution of the appellants in place of Chapru Munda was barred by limitation. This argument was based on the language of Section 53 of the Land Acquisition Act, which lays down that the provisions of the Code of Civil Procedure shall apply to all proceedings before the court under the said Act It is to be noted that this point was also raised in the court below and the court below, after considering all the matters before it, allowed the substitution to be made. The date of knowledge about the proceeding is the 12th March, 1964 and the date of petition for substitution is the 12th June, 1964. Any way, the question of abatement does not arise in a proceeding like this.

In Sanjiva Row's Law of Land Acquisition and Compensation, revised and enlarged by J.P. Singhal, Fifth (1966) edition, at page 808, under item (k), it has been stated that "order XXII of the Code of Civil Procedure cannot be applied to proceedings under Section 18 of the Act .....

Once a reference is made under Section 18, the court must make an award under Section 26, irrespective of whether the person, at whose instance the reference has been made, does or does not appear before the court, or fails to produce evidence in support of his objection. A reference proceeding cannot abate. The application of Order XXII of the Code is inconsistent with the very nature and scope of the proceeding under Section 18. If the person, at whose instance the reference is made, dies and no one comes forward to represent him, it is the duty of the Government to supply to the Court the names and addresses of the legal representatives of the deceased claimant to enable the court to issue fresh notice to them under Section 20".

Citation : AIR 1970 Pat 209

IN THE HIGH COURT OF PATNA

A.F.O.D. No. 449 of 1964

Decided On: 18.04.1969

Bhadar Munda and Anr.
Vs.
Dhuchua Oraon

Coram:
Anwar Ahmad and M.P. Varma , JJ.

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Whether delay for bringing legal heirs on record can be condoned if applicant fails to give reasons for not knowing death within reasonable time?

It is true, as contended, that it is no duty of the appellant to make regular enquiries from time to time about the health or existence of the opposite party, but it does not mean that the mere fact of the appellant's coming to know of the respondent's death belatedly will, by itself, justify his application for setting aside the abatement. That is not the law Rule 9 of O. XXII of the Code requires the plaintiff 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 had to state reasons which, according to him, led to his not knowing of the death of the defendant within reasonable time and to establish those reasons to the satisfaction of the Court, specially 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.

Supreme Court of India

Union Of India vs Ram Charan & Others on 30 April, 1963

Equivalent citations: 1964 AIR 215, 1964 SCR (3) 467

BENCH:
DAYAL, RAGHUBAR
SUBBARAO, K.
MUDHOLKAR, J.R.

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Whether court can condone delay in bringing legal heirs on record if pathetic explanation is given for same?

Having recorded the aforesaid conclusions, the High Court proceeded to condone the delay. In our opinion, such a course was not open to the High Court, given the pathetic explanation offered by the respondents in the application seeking condonation of delay.
Reportable

Supreme Court of India

Lanka Venkateswarlu (D) By Lrs vs State Of A.P. & Ors on 24 February, 2011

Bench: B. Sudershan Reddy

Citation:2011(4) MHLJ 104:(2011) 4 SCC 363

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