Rajasthan High Court - Jodhpur
Jabbar Singh And Ors vs Smt.Laxmi Devi And Anr on 28 March, 2023
Author: Rekha Borana
Bench: Rekha Borana
HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
S.B. Civil First Appeal No. 249/2009
Jabbar Singh And Ors.
----Appellants
Versus
Smt. Laxmi Devi And Anr.
----Respondents
For Appellant(s) : Mr. Narendra Thanvi
Mr. Mahendra Thanvi
For Respondent(s) : Mr. Akshay Nagori
HON'BLE MS. JUSTICE REKHA BORANA
Order 28/03/2023 An application under Order XXII Rule 10A of the Code of Civil Procedure has been preferred on behalf of respondent No.1 with an information that respondent No.1-Laxmi Devi has expired on 20.08.2022. A copy of the said application had been served on learned counsel for the appellants on 29.11.2022.
Learned counsel for the respondent No.1 submitted that despite the information of the death of respondent No.1 having been given to learned counsel for the appellant way back in the month of November, 2022, till date no application for substitution of legal representatives of the said respondent has been preferred by the appellant and therefore, the appeal stands abated against respondent No.1.
Learned counsel for the appellants submitted that as per Order XXII Rule 10A, CPC, on an information of death of any of the parties been given, the same has to be taken on record by the Court and then only the limitation for substitution of legal representatives of the said party would commence. He therefore, submitted that the appeal would not stand abated against the (Downloaded on 04/04/2023 at 08:23:52 PM) (2 of 5) [CFA-249/2009] deceased respondent No.1 and he be granted time to substitute the legal representatives of the said deceased respondent. Counsel further submitted that the prayer of the respondent in application under Order XXII Rule 10A, CPC also is only to take the information on record and therefore too, the limitation to substitute the legal representatives would commence from the date such information is taken on record. In support of his submission, he relied upon the judgment passed in the case of Mewar Kalal Nyati Sangh Vs. Jaivi and Ors.; AIR 1999 Raj
148. Order XXII Rule 4(1), CPC provides as under:
"(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit."
Order XXII Rule 4(3), CPC provides as under:
"(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant."
Order XXII Rule 10A, CPC provides as under:
"10A. Duty of pleader to communicate to Court death of a party- 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."
Article 120 of the Limitation Act, 1963 provides for a limitation of 90 days for filing of an application for substitution of the legal representatives of a deceased plaintiff/defendant. The question as to when the limitation as provided under Article 120 of the Limitation Act would begin to run and what would be the effect (Downloaded on 04/04/2023 at 08:23:52 PM) (3 of 5) [CFA-249/2009] of Order XXII Rule 10A, CPC for the purposes of limitation was under consideration by the Hon'ble Delhi High Court in the case of Deepak Verma vs. Daya Nand; C.R.P. 183/2018 & CM APPL. 35871/2018 decided on 01.07.2019, wherein it was held as under "16. Although the CPC does not expressly provide for the consequences of non-compliance with Order XXII Rule 10 A of the CPC, at the very least, it is a factor to be taken into account while deciding whether or not delay in filing an application for setting aside abatement is justified. The provision does not, however, automatically extend the period of limitation provided under Articles 120 and 121 of the Limitation Act, 1963.
17. The position which emerges from the above discussion is that the period of limitation of making an application for substitution of legal heirs of a deceased defendant begins to run from the date of death. The date upon which the plaintiff acquired knowledge of the death is not relevant for this purpose. The suit would abate as against the deceased defendant after the period of 90 days provided under Article 120 of the Limitation Act expires. However, even after this period has elapsed, the plaintiff can apply for setting aside the abatement of the suit. Although the period of 60 days is provided for this purpose in Article 121, any delay in making the application can be condoned if the plaintiff is able to show sufficient cause for the delay. The plaintiff's ignorance about the death of the defendant and the non- compliance with Order XXII Rule 10A of the CPC are relevant factors which would have a bearing while considering the application for condonation of delay."
An overall analysis of the above provisions of law and the ratio held, it can be summed up that firstly, the limitation for substitution of legal representatives of a deceased plaintiff/ defendant commences from the date of death and not from the date of knowledge; secondly, the abatement on non-filing of an application for substitution of the legal representatives within the prescribed limitation, is automatic; and thirdly, the provision of Order XXII Rule 10A, CPC does not automatically extend the (Downloaded on 04/04/2023 at 08:23:52 PM) (4 of 5) [CFA-249/2009] period of limitation provided under Articles 120 and 121 of the Limitation Act, 1963.
Coming on to the present matter, the communication/ information regarding death of respondent no.1 has been placed on record vide a written application on 29.11.2022 and a copy of the same has been served on learned counsel for the appellant on the same date. Firstly, in terms of law, the appeal stood abated automatically after 90 days of the death of the said respondent as no application for substitution of legal representatives had been filed till that date. Even if it is assumed that the limitation commenced from the date of information/knowledge of death, then too, the same had expired in the month of February, 2023 and no application having been filed even till that date, the appeal definitely stands abated against respondent No.1.
So far as the judgment relied upon by learned counsel for the appellant is concerned, the same pertains to an application under Order XXII Rule 9, CPC and the issue therein was whether the reasons stated for condonation of delay in filing the application for substitution of legal representatives were plausible or not and whether the limitation for said purpose would commence from the date of information of death of the party being given to the learned counsel or not. The said ratio would definitely not apply to the present matter as herein the Court is not adjudicating an application under Order XXII Rule 9, CPC. Rather, herein, there is no application till date for substitution or for condonation of delay in filing such application.
In view of the above observations and analysis, the present appeal stands abated against the deceased respondent No.1. (Downloaded on 04/04/2023 at 08:23:52 PM)
(5 of 5) [CFA-249/2009]
Learned counsel for the respondents submits that
respondent No.2 is a formal party and therefore, the appeal would stand abated against him also. So far as the said contention is concerned, the issue whether the appeal would stand abated against respondent No.2 also would be decided only after the arguments being heard on the issue and after decision as to whether the said respondent is a formal party or not.
Let the appeal be listed for arguments after three weeks on the above issue raised by learned counsel for the respondents.
(REKHA BORANA),J 82-AbhishekS/-
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