Madras High Court
C.Mathuram vs Technical Staff Housing Society on 16 February, 2015
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram
IN THE HIGH COURT OF JUDICATURE AT MADRAS Date : 16.02.2015 CORAM THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM C.R.P (PD)No.250 of 2015 and M.P.No.1 of 2015 1.C.Mathuram 2.S.Mayan 3.S.Karnan 4.S.Veeran 5.U.Vijiaya 6.Samundi 7.S.Thirumurugan 8.Manimegalai. ... Petitioners / Plaintiffs 3 to 11 Vs 1.Technical Staff Housing Society Represented by its Secretary, No.787 Anna Salai, Chennai 600 002. 2.K.Raman 3.G.Jeyarajan 4.P.Kandasamy 5.A.Venkatachalam 6.K.V.Kandasamy 7.G.K.Baldev 8.A.Valliammal 9.L.M.Sakuntala 10.C.Balasubramanian 11.S.Swaminathan 12.M.Pasupathy 13.A.Adhithan 14.A.Poongothai 15.M.Rajavelu 16.A.Lalitha 17.K.Somasundaram 18.K.Varadarajan 19.M.C.Srinivaan 20.T.M.T.Jayalakshmi 21.A.Padmavathi 22.S.Swaminathan 23.Tamil Nadu Electricity Board 24.M.Vijayalaksmi 25.D.Vijayan 26.A.Thirunavukkarasu 27.D.Sampath 28.Corporation of Madras Represented by its Commissioner Rippon Building, Park Town, Chennai 600 003. 29.Madras Metropolitan Development Authority, Represented by tis Secretary Gandhi Irwin Road, Chennai 600 008. 30.R.Valliammal 31.R.Uma 32.R.Anuradha 33.R.Yuvarani 34.A.Sivasubramaniam (Respondents 1 to 33 are given up) ... Respondents / Defendants 1, 2 and 4 to 34- Proposed 35th defendant) Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India against the order dated 11.12.2014 passed in I.A.No.107 of 2014 in O.S.No.6592 of 2013 on the file of the XV Additional Judge, City Civil Court at Chennai in so far as the dismissal of the application as against the 34th respondent alone is concerned. For Petitioners : Mr.S.Subbiah For Respondents : Mr.D.Prabhu Mukunth Arunkumar O R D E R
This revision arises out of the order passed by the XV Additional Judge, City Civil Court, Chennai in I.A.No.107 of 2014 in O.S.No.6592 of 2013.
2. The petitioners originally instituted a suit in C.S.No.1077 of 1992 before the original side of this Court against the respondent for declaration and for permanent injunction. Subsequently, the suit was transferred to the XV Additional Judge, City Civil Court, Chennai and re-numbered as O.S.No.6592 of 2013. In the suit, the petitioners filed I.A.No.107 of 2014 under Order 22 Rule 4 (1) of CPC to record the respondents 9, 10 and 22 and bring the 35th respondent on record as the legal representatives of the deceased V.K.Arumugham.
3. In the affidavit filed in support of the petition, it is averred that the second plaintiff S.Saraswathi Ammal died and the applicants 3 to 8 were brought on record as the legal representatives of the second plaintiff and the applicants 9 to 11 were brought on record as Legal representatives of the third plaintiff. It is further stated that very recently, they came to know that the third defendant in the above suit also died leaving behind his wife, two daughters and a son who are the respondents 9, 10, 22 and 35 respectively. Since the respondents 9, 10 and 22 were already on record, the suit was not abated with respect to the deceased third respondent in the above suit.
4. The application was opposed by the respondent stating that the application is barred by limitation, that the applicants were aware of the death of the third defendant and the applicants ought to have moved the applications to condone the delay in filing impleading petition to bring the legal representatives of the deceased on record. On those grounds, the respondent prayed for dismissal of the petition.
5. The learned Additional Judge, City Civil Court, Chennai allowed the application in part recording the respondents 9, 10 and 22 as the legal heirs of the deceased third defendant, but rejected the petition to bring the proposed 35th respondent on record as the legal representative of the deceased 3rd defendant in the suit. Aggrieved by the order, the present revision is filed.
6. Shri S.Subbiah, learned counsel for the petitioner submitted that the reasons assigned by the trial court for the dismissal of the application that it was filed beyond the period of 90 days from the date of death of the third defendant and the petitioners have not filed the application under Section 5 of the limitation act to condone the delay cannot be sustained in law. The learned counsel would submit that since the respondents 8, 9 and 21 were already on record and the suit will not get abated on the death of the third defendant and once there is no abatement in the suit, the petitioners need not take out an application to condone delay. It is further submitted that Rule 10 (a) of Order 22 mandates the pleader appearing for a party to inform the court about the death of that party and the court shall, thereupon give notice of such death to the other party and for that purpose, the contract between the pleader and the deceased party shall be deemed to subsist.
7. The learned counsel for the petitioners further submitted that the respondents themselves were not sure about the date of death of the third defendant and that is why, in the counter, the respondents did not give the date of death and subsequently included in the counter; that the same counsel was appearing for the third defendant and for his wife and daughters and therefore, it is the duty of the counsel to inform the death to the court, as per Order 22 Rule 10 (a) of CPC. It is further contended that the defendants are living in different place and it cannot be the duty of the plaintiff to go and verify personally the existence of the defendants till the trial is concluded and to get over the above situation, the legislature has thought it fit to introduce Rule 10 (a) in Order 22 casting a duty on the counsel to inform the court that the plaintiffs were not aware of the death of the third defendant, but in the counter affidavit, the defendants have made vague and bold allegations stating that the applicants were aware of the death of the third defendant. The learned counsel further submitted that the defendants having failed to inform the death of the third defendant, cannot take advantage of their own wrong. The learned counsel has relied upon the following judgments -
(1) 54 MLJ 675 [V.Achuthan Nair and another v. Manavikraman alias Kunhettan Raja and another] (2) 1971 (1) SCC 460 [Ramdass and another v. Dy. Director of Consolidation and Others] (3) 1984 (1) SCC 121 [Gangadhar and another v. Raj Kumar] (4) 1996 (4) SCC 178 [Urban Improvement Trust, Jodhpur v. Gokul Naraim (Dead) by Lrs. And another] (5) 2004 (12) SCC 253[K.Rudrappa v. Shivappa] (6) AIR 2007 Madhya Pradesh 223 [Jhabbu Lal v. Purroo and others] (7) AIR 2009 Rajasthan 98 [Mahendra and Ors. v. Rawata Ram (by Lrs.) and Anr.]
8. Per contra, Mr.D.Prabhu Mukunth Arunkumar, learned counsel for the respondents contended that the defendants cannot be blamed for the pendency of the suit since 1992 and even in the year 2012, the service of summons on the defendants were not completed; that the present counsel came on record only on 01.04.2004 and he cannot be blamed for non-compliance of provision Rule 10 (a) of Order 22 of CPC by the earlier counsel; that the affidavit of the petitioner is bereft of the particulars and the petitioners have not even pleaded about the date of knowledge and if they had filed application to condone the delay, they can take advantage of Order 22 Rule 10 (a) CPC. The learned counsel further submitted that the defendants 9, 10 and 22 were already on record on different capacity as purchasers of the part of the suit property and therefore their presence cannot be taken advantage of by the petitioners for filing this belated application. The learned counsel would further submit that even for applying 10 (a) of Order 22, the petitioners have to file a separate application for condonation of delay.
9. In support of his contention, the learned counsel for the respondent relied on the judgments of the Hon'ble Supreme Court reported in 2008 (8) SCC 321 [Perumon Bhagvathy Devaswom v. Bhargavi Amma] and 2009 (11) SCC 183 [Katari Suryanarayana v. Koppisetti Subba Rao] .
10. In the case of Ramdass v. Dy. Director of Consolidation reported in (1971) 1 SCC 460, the Hon'ble Apex Court has held as follows:-
4. An objection was raised on behalf of the contesting respondents that all the legal representatives of Sheo Tahal, who had been impleaded as a respondent but who had died, had not been impleaded. A Civil Miscellaneous Petition, dated April 20, 1970, was filed by the appellants saying that two of the daughters of Sheo Tahal, namely, Smt Biafi and Smt Maini who were living in the village where he died had already been impleaded as the legal representatives of the deceased but that Smt Parmeshwari, the third daughter was living elsewhere and information was not available in time about her and therefore she could not be impleaded earlier. It was prayed that she might be added as a party. When two of the legal representatives of the deceased were already on the record the name of the third legal representative could certainly be brought on the record. In our opinion the appeal could not be dismissed as having abated for Smt Parmeshwari not having been impleaded in time.
11. In the case of Gangadhar v. Raj Kumar reported in (1984) 1 SCC 121, the Hon'ble Apex Court held as follows:-
3. Now the fact remains that admittedly the appellants claim that they came to know about the death of the deceased respondent when the present respondent moved an application for substitution. Rule 10-A which has been added in Order XXII of the Code of Civil Procedure by the Amending Act of 1976 provides that when a pleader appearing for a party to the suit comes to know of the death of the party, he shall inform the court about it and the court thereafter shall issue notice to the other party. In the case of an appeal, the word suit has to be read as appeal. This provision was introduced specifically to mitigate the hardship arising from the fact that the party to an appeal may not come to know about the death of the other party during the pendency of the appeal but when it is awaiting its turn for being heard. The appeal lies dormant for years on end and one cannot expect the other party to be a watch-dog for day-to-day survival of the other party. When the appeal on being notified for hearing is activated, knowledge occasionally dawns that one or the other party has not only died, but the time for substitution has run out and the appeal has abated. In order to see that administration of justice is not thwarted by such technical procedural lapse, this very innovative provision has been introduced, whereby, a duty is cast upon the learned advocate appearing for the party who comes to know about the death of the party to intimate to the court about the death of the party represented by the learned counsel and for this purpose a deeming fiction is introduced that the contract between dead client and lawyer subsists to the limited extent after the death of the client.
12. In the case of Urban Improvement Trust, Jodhpur v. Gokul Narain, reported in (1996) 4 SCC 178 :-
3.The Act was amended by Rajasthan Amendment Act 29 of 1987 which came into force w.e.f. 1-8-1987. By reason thereof, the Central Amendment Act 68 of 1984 became applicable to acquisition under the Act from 1-8-1987. Section 60-A of the Act, as inserted by the Amendment Act 29 of 1987, made transitory provision applicable to the pending matters. Pending the special leave petition, the first respondent died on 17-2-1995. A notice was issued on 2-1-1995. When the notice was not served, the appellant was permitted to take out dasti service by order dated 5-2-1996 and when the notice was taken, the appellant was informed that the respondent had died. Consequently, application for substitution under Order 22, Rule 4, CPC was filed on 12-2-1996. The legal representatives received the notice as per the orders of this Court dated 18-3-1996. We have heard the learned counsel on both sides.
4.It is stated in the written arguments of the counsel for the respondents that the District Judge by order dated 27-5-1995 brought the legal representatives of the first respondent on record. When application came to be filed in the District Court on 5-5-1995 to the knowledge of the counsel for the appellant, it was ordered on 27-5-1995. The application for substitution is barred by limitation. The special leave petition had abated and, therefore, appeal is not maintainable. We find no force in the contention. Under Order 22, Rule 10-A, CPC, whenever a pleader appearing for a party to the suit comes to the knowledge of the death of the party, he has to inform about it and the court thereupon gives notice of such death to the other party and for this purpose the contract between the pleader and the deceased party is deemed to subsist. It would, therefore, be clear that though the legal representatives have been brought on record in the executing court on 27-5-1995 pending proceedings in this Court, since the counsel for the appellant did not have had the information, on coming to know of the death after dasti service was taken out, immediately application under Order 22, Rule 4, CPC came to be filed within 30 days of the date of the knowledge. Accordingly, there is no abatement of the appeal. The State is not expected to keep watch over the survival of the respondent and lapse of counsel to intimate to the counsel appearing in this Court cannot be construed to be knowledge of death. Even if it is assumed that abatement was caused, since application was filed under Order 22, Rule 4, CPC within 30 days from the date of the knowledge there is no delay in making the application to bring the legal representatives on record in this appeal. There is, hence, no abatement by reason of the death of the respondent. The application to bring the legal representatives is accordingly ordered.
13. In the case of K. Rudrappa v. Shivappa, (2004) 12 SCC 253, the Hon'ble Apex Court held as follows :-
4. The learned District Judge, however, rejected the application on 8-4-1996 holding that the application filed by the appellant was time-barred and no prayer for setting aside abatement had been made nor was an application for condonation of delay filed and hence the application was liable to be rejected.
10. Having heard learned counsel for the parties, in our opinion, the appeal deserves to be allowed. The case of the appellant before the District Court was that he was not aware of the pendency of the appeal filed by his father against the order passed by the Tahsildar. The father of the appellant died in June 1994 and the appellant came to know of the pendency of appeal somewhere in September 1994 when he received a communication from the advocate engaged by his father. Immediately, therefore, he contacted the said advocate, informed him regarding the death of his father and made an application. In such circumstances, in our opinion, the learned counsel for the appellant is right in submitting that a hyper technical view ought not to have been taken by the District Court in rejecting the application inter alia observing that no prayer for setting aside abatement of appeal was made and there was also no prayer for condonation of delay. In any case, when separate applications were made, they ought to have been allowed. In our opinion, such technical objections should not come in doing full and complete justice between the parties. In our considered opinion, the High Court ought to have set aside the order passed by the District Court and it ought to have granted the prayer of the appellant for bringing them on record as heirs and legal representatives of deceased Hanumanthappa and by directing the District Court to dispose of the appeal on its own merits. By not doing so, even the High Court has also not acted according to law.
14. In the judgement relied upon by the respondent in (2008)8 SCC 321, the Hon'ble Apex Court has held as follows:-
17. The second circumstance is whether the counsel for the deceased respondent or the legal representative of the deceased respondent notified the court about the death and whether the court gave notice of such death to the appellant. Rule 10-A of Order 22 casts a duty on the counsel for the respondent to inform the court about the death of such respondent whenever he comes to know about it. When the death is reported and recorded in the order-sheet/proceedings and the appellant is notified, the appellant has knowledge of the death and there is a duty on the part of the appellant to take steps to bring the legal representative of the deceased on record, in place of the deceased. The need for diligence commences from the date of such knowledge. If the appellant pleads ignorance even after the court notifies him about the death of the respondent that may be an indication of negligence or want of diligence.
18. The third circumstance is whether there is any material to contradict the claim of the appellant, if he categorically states that he was unaware of the death of the respondent. In the absence of any material, the court would accept his claim that he was not aware of the death.
19. 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 partyLRs of the deceasedon 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 or contradict his claim.
15. In Katari Suryanarayana and others vs. Koppisetti Subba Rao and others reported in (2009)11 SCC 183, the Hon'ble Apex Court held as follows:-
12. It is now trite by reason of various decisions of this Court that different considerations arise in the matter of condoning the delay in filing an application for setting aside an abatement upon condonation of delay in a suit and an appeal. It is furthermore neither in doubt nor in dispute that such applications should be considered liberally. The court would take a more liberal attitude in the matter of condonation of delay in filing such an application. There are, however, exceptions to the said Rule.
13. The parties hereto were neighbours. They were fighting over the right to use a lane which connects their respective residential houses. It is, therefore, difficult for us to appreciate that the appellant was not aware of the dates of death of Respondents 2 and 3.
14. It may be true that a distinction exists where an application for setting aside of the abatement is filed in a suit and the one which is required to be filed in a second appeal before the High Court but the same, in our opinion, by itself may not be sufficient to arrive at a conclusion that the parties were not aware of the consequences thereof.
15. The appellants themselves rely on the provisions of Order 22 Rule 10-A of the Code of Civil Procedure, which was inserted by reason of the Code of Civil Procedure (Amendment) Act, 1976. It does not, however, provide for consequences. It does not take away the duty on the part of the plaintiff or the appellant, as the case may be, to file an application for condonation of delay in bringing on record the heirs and legal representatives of a deceased plaintiff/appellant or defendant/respondent within the period prescribed.
16. In Jhabbu Lal vs. Purroo and others reported in AIR 2007 MP 223, it has been held as follows:-
'10.Thus, from the above judgments it is evident that the application for substitution under O.22, Rule 3of the C.P.C or under O.22, R.4 of the C.P.C filed after prescribed period of limitation i.e., 90 days, is to be ordinarily treated as an application to set aside the abatement of the suit which has taken place even though no formal prayer for setting aside abatement has been made in the application.
17. In the case of V.Achuthan Nair and another vs. Manavikraman alias Kunhettan Raja and another reported in 54 MLJ 675, Division Bench of this Court been has held as follows:-
We do not think that, when the legal representatives for a deceased defendant or respondent are on record, an application to bring on the legal representatives within three months is necessary. It is enough if the plaintiff or appellant at some time or other before the hearing of the suit or appeal states the fact and gets it noted on the record. The decision in Shankar Bai v. Motilal [(1924)1 LR 49 B 118] on this matter is not necessary for the case. Anyhow we do not agree with it. The decision Gurditta Mal vs. Muhammad Khan [(1925)7 Lah. J.J 544] has been dissented from the Lahore High Court itself in Gopal Das vs. Mul Chand [(1926)I LR 7 Lah.399] See also Maung P.o vs. Ma Srve Ma [(1924)I LR 2 R 445] and the decision of Jackson.,J in C.R.P.No.527 of 1927 with which we agree.
18. In the case of Mahendra and others vs. Rawata Ram (by Lrs) and another reported in AIR 2009 RAJASTHAN 98, it has been as follows :-
7. At this juncture, it will be worthwhile to mention here that in the application under Order 22, Rule 3 or under Order 22, Rule 4, CPC, one is required to make prayer only for impleading the legal representative of deceased plaintiff/defendant and in application under Order 22, Rule 9, CPC as well as Section 5 of the Limitation Act, one is required to plead reasons for not moving the said application in time. Substantially Order 22, Rule 9, CPC and Section 5 of the Limitation Act are of identical nature with the prayer for condonation of delay in taking action by the applicants. All these applications can be merged in one application when the application is not in time for taking on record the legal representatives of any of the parties to the suit. By narrating the facts in 3 different applications with respect to cause of delay to avoid complications of objections that the plea which has been taken in the application under Order 22, Rule 9, CPC has not been pleaded in the application under Order 22, Rule 3 or 4, CPC, if all the facts are pleaded in one application that will advance cause of justice only and will avoid unnecessary filing of applications.
8. It is settled law that mere title is not decisive for deciding the nature of the application. There appears to be no bar as such for filing consolidated application for the relief one under Order 22, Rule 3 or 4, CPC and another under Order 22, Rule 9, CPC and for condonation of delay under Section 5 of the Limitation Act. Even if Rules of procedure require for filing separate application for separate reliefs, even then, there can be no Justification for filing 3 separate applications when the reliefs sought in three applications are connected or when reliefs sought are dependent upon reliefs required to be obtained for getting complete relief. By praying for condonation of delay and on condonation of delay by the Order of the Court, the relief in application under Order 22, Rule 9, CPC can be granted and when above two reliefs are granted, then only relief under Order 22, Rule 3 or Rule 4, CPC can be granted. These three applications - one for condonation of delay, another for setting aside of abatement and third for taking on record the legal representatives are required to be filed together obviously on the same day, then there is no reason to ask for three separate applications and three separate notices to other party or such interconnected matters.
9. At this juncture, it will be worthwhile to mention here that suit for various reliefs can be filed by paying consolidated Court fees, then why application cannot be filed for multifarious reliefs.
10. In view of the above reasons, the approach of the trial Court was fully justified and the trial Court rightly did not demand different applications for virtually the same relief. Even in a case where the relief of setting aside of abatement has not been specifically claimed, the Court may consider the complete application to find out what is the prayer and if case is made out for condonation of delay and for setting aside of abatement of proceedings, the Court may condone the delay, may set aside abatement of the suit/appeal even without specific prayer. Relief of impleading of legal representatives of one of the party may be if case is made out on the basis of the facts pleaded in the application, can be considered as an application for setting aside of abatement, which is a prayer inherently within the prayer for seeking relief of taking on record the legal representatives of the deceased in the suit or appeal.
19. In the case on hand, it is not in dispute that the 3rd defendant died leaving behind the defendants 9, 10 and 22 and also the proposed 35th defendant as his legal heirs. The petitioners filed the application I.A.No.107 of 2014 to record the defendants 9, 10 and 22 and to bring on the 35th defendant as the legal heir of the 3rd defendant.
20. It is also not in dispute that the same counsel had appeared for the defendants 3, 9 10 and 22, however, he did not inform about the death of the 3rd defendant to the court, as prescribed under Rule 10-A of Order 22 CPC and that the petitioners have also not filed separate applications to condone the delay in bring the 35th respondent as defendant in the suit.
21. The only question that arises for consideration in this revision is that whether the application filed by the petitioners to bring on record the 35th defendant, without a formal application to condone the delay is maintainable or not?.
22. The learned Additional Judge, City Civil Court, Chennai, while recording the other legal heirs of the deceased defendant, rejected the prayer to bring on the 35th defendant, on the only ground that it was filed beyond the prescribed period of limitation and there is no application to condone the delay.
23. Rule 10(A) of Order 22 of CPC reads as follows :-
10-A Duty of pleader to communicate the 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.
24. Rule 10-A was added to Order 22 of CPC, by amending Act of 1976 with an object to avoid the dismissal of the suit/appeal for the non subsistence of the legal heirs of the deceased/respondent in appeal in time on the technical procedural lapse.
25. In the decision reported in (2004) 12 SCC 253 [K.Rudrappa vs. Shivappa], the Hon' ble Apex court has taken the view that in considering the application for bringing the legal representatives on record that the court shall not adopt hyper technical view and reject it on the ground that no prayer to set aside the abatement and there is no prayer for condonation of delay. The same view was followed by the High Court of Madhya Pradesh in the judgment reported in AIR 2007 MP 223.
26. In the decision reported in (2008)8 SCC 321 [Perumon Bhagvathy Devaswom, Perinadu Village vs. Bhargavi Amma (Dead) by Lrs and others, the Hon'ble Apex Court has observed that as prescribed by Rule 10-A of Order 22 CPC, a duty is casted on the counsel for the respondent to inform the court about the death of such respondent whenever he comes to know about it. Despite the death is reported and recorded in the order-sheet/proceedings, if the appellant pleads ignorance that may be an indication of negligence or want of diligence.
27. In the light of the decisions of the Hon'ble Apex Court as well as the other High Court, the application of the petitioners cannot be rejected on the sole ground that there is no separate application for setting aside the abatement and for condonation of delay in setting abatement. Further, in the judgment reported in 1971(1) SCC 460 in the case of Ramdass and another vs. Dy. Director of Consolidation and others, the Hon'ble Apex Court has categorically observed that when two legal heirs of the deceased were already on record, the name of the 3rd legal representative could be certainly brought on record and the case cannot be dismissed as abated, for not having been impleaded the other legal heirs in time.
28. In view of above findings, the order impugned in the revision is liable to be set aside and the same is set aside.
29. In the result, the revision petition is allowed. Considering the facts, the trial court shall dispose of the suit, within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is closed.
16.02.2015 Index:Yes rgr/er Note : Issue order copy by 22.05.2015 To The XV Additional Judge, City Civil Court, Chennai.
K.KALYANASUNDARAM,J rgr/er Order in C.R.P (PD)No.250 of 2015 16.02.2015