JUDGMENT - Saldanha M.F., J.:—An unusual situation resulting in a curious position in law has arisen in this case which involves the application of Order 22, Rule 10-A 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 the 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 contended in 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 that the 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 10-A 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 10-A 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

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