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.


THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY        

C.R.P. No.6363 of 2012

31.01.2013
       
N.Sankar Reddy.

N.Rami Reddy (died) and others.

Counsel for the petitioners: Sri K.G.Krishna Murthy

Counsel for respondents: Sri R.Dheeraj Singh

<GIST:

>HEAD NOTE:  

?Cases referred:

ORDER:
          Way back in the year 1998, the sole petitioner herein filed
O.S.No.1148 of 1998 in the Court of I Additional Junior Civil Judge, Chittoor
against K.Rami Reddy and Sivalinga Reddy, for the relief of declaration of title
and perpetual Injunction in respect of the suit schedule property viz., an
extent of about half acre of land in different survey numbers of Varathur
Village, G.D.Nellore Mandal, Chittoor District.
        During the pendency of the suit, Sivalinga Reddy died and his legal
representatives i.e., respondents 3 to 9 herein were brought on record, by
filing I.A.No.810 of 2004, which was ordered by the trial Court on 18.08.2004.
Rami Reddy is said to have died on 31.07.2001.  The petitioner was not aware of
that fact. However, he did make an effort to bring the legal representatives of
Rami Reddy on record.  Since there was delay, he filed I.A.No.341/2003 under
Section 5 of Limitation Act.  However, that was strongly opposed by the
respondents 3 to 9 and the same was dismissed by the trial Court through its
order, dated 02.07.2003.  Thereafter, respondents 3 to 9 filed I.A.No.523 of
2004 with a prayer to declare that the suit is abated on account of the death of
Rami Reddy, the 1st defendant in the suit.  That application was ordered on
09.09.2004.  A decree was passed to the effect that the suit stood dismissed as
abated.
          The petitioner on the one hand filed C.R.P.No.5158 of 2004 against
order. dated 09.09.2004 passed in I.A.No.523 of 2004,  and on the other hand
filed A.S.No.151 of 2005 in the Court of IX Additional District Judge, (Fast
Track Court), Chittoor against decree dated 09.09.2004, through which the suit
was dismissed.  C.R.P.No.5158 of 2004 was allowed on 14.08.2008 directing that
it shall be open to parties to agitate the question as to whether the death of
Rami Reddy has resulted in abatement of the suit.  A.S.No.151 of 2005 was
allowed on 28.12.2011, setting aside the decree, dated 09.09.2004.  A direction
was issued by the lower appellate Court, to the trial Court to take steps as
directed by this Court in CRP No.5158 of 2004.
          After the suit was restored, the petitioner filed I.A (C.F.).No.13916
of 2012 with a prayer to implead respondents 10 to 15 herein as defendants in
the suit.  According to him, the proposed respondents, who comprised of legal
representatives of the deceased-first defendant and certain others, are trying
to interfere with his possession over the suit schedule property.  At the
threshold itself, the trial Court dismissed the I.A., through its order, dated
06.11.2012.  Hence, this civil revision petition.
        Sri K.G.Krishnamurthy, learned Additional Advocate General appearing for
the petitioner submits that the order passed by the trial Court does not accord
with law.  He contends that once the decree passed by the trial Court on
09.09.2004 dismissing the suit as abated was set aside, the application filed
under Order I Rule 10 C.P.C. ought to have been entertained and decided on
merits. He further submits that the trial Court did not correctly appreciate the
purport of the order passed by this Court in C.R.P.No.5158 of 2004 and that of
the lower appellate Court in A.S.No.151 of 2005.
        Sri R.Dheeraj Singh, learned counsel for the respondents, on the other
hand, submits that even by this time, the petitioner did not take any steps to
bring the legal representatives of the deceased-1st respondent on record.  He
contends that since I.A.No.341 of 2003 filed under Section 5 of the Limitation
Act with a prayer to condone the delay in filing L.R. petition was dismissed way
back on 02.07.2003, the present application is not maintainable.
        The various developments, that have taken place in the suit for the past
about one decade, reveal that no attempt was made to get to the root of the
matter at any stage.  The superficial treatment given to the different
proceedings has given raise to the present state of affairs.
        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 the Hon'ble IX ADJ, CTR in A.S.No.151/05
relating to O.S.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 ADJ, 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.
        Therefore, the Civil Revision Petition is allowed and the order under
revision is set aside.  To avoid further complications in the matter, it is
directed that I.A(C.F).No.13916 of 2002 shall stand allowed.  In case, the
proposed parties intend to file any written statement, it shall be open to them
to do so within 30 days from today.  Additional issues, if necessary, shall be
framed and the suit shall be disposed of within six months from the date of
receipt of a copy of this order.
        The civil miscellaneous petition filed in this civil revision petition
shall also stand disposed of. There shall be no order as to costs.
_____________________  
L.NARASIMHA REDDY, J    
Date: 31.01.2013

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