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2018 Supreme(Bom) 1691
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.P. COLABAWALLA, J.
Ida Fernandes - Petitioner
Vs.
Cecilia Fernandes & Ors. - Respondents
Writ Petition No. 11443 of 2015
Decided On : 03-12-2018
For the Petitioner: Mr. Denzil D'mello
For the Respondent: Mr. Sunny Yadav I/b V.K. Damle
Headnote:
Limitation Act - Section 3 - Code of Civil Procedure, 1908 - Order XXII Rule 10A - Legal heirs - Waives service – Limitation - Duty of pleader to communicate to Court death of a party - This Chamber Summons was filed by original Plaintiff (the Petitioner herein) to bring legal heirs of deceased Defendant Nos.2 and 4 on record. It is not in dispute that Defendant Nos.2 and 4 were represented by advocates before Trial Court - Defendant No.2 expired on 21st March, 2005 and Defendant No.4 expired on 28th December, 2008 - It is, in these circumstances, that Chamber Summons was filed for bringing their legal heirs on record - Held, In facts of the present case it is not in dispute that no such notice was given by advocates for Defendant No.2 or 4 either to Court or to Plaintiff about the death of their respective clients - In view of foregoing discussion, order of Trial Court cannot be sustained and, it is therefore, set aside and Chamber Summons in Suit filed before Trial Court is allowed in terms of prayer clauses (a) to (f) therein - Writ Petition is disposed of.
Certainly. Based on the provided legal document, here are the key points:
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The case involves a petition challenging the order of the trial court dismissing a Chamber Summons filed to bring the legal heirs of deceased defendants on record (!) (!) .
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The defendants in the original suit were represented by advocates before their deaths, which occurred on specific dates (Defendant No.2 on 21st March 2005 and Defendant No.4 on 28th December 2008) (!) (!) .
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The Chamber Summons was filed to substitute the legal heirs of the deceased defendants, but there was no notice given by the advocates for the deceased defendants to the court or the plaintiff regarding their deaths (!) (!) (!) .
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The legal obligation under Order XXII Rule 10A of the Civil Procedure Code requires that the advocate for a party who has died must inform the court of the death, and the court must notify the other party. This rule is mandatory and aims to prevent uncertainty regarding the status of parties in pending litigation (!) (!) .
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The failure to comply with the mandatory notice requirement under Rule 10A led to the trial court's order being set aside, as the court could not properly dismiss the Chamber Summons on the ground of delay or limitation without such notice (!) (!) .
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The court emphasized that procedural compliance with Rule 10A is essential for applying the limitation period under the Limitation Act, and non-compliance weighs heavily against dismissing applications on procedural grounds (!) .
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The court also noted that the rule's purpose is to clarify the status of parties and ensure proper substitution, especially given the long duration of some suits and appeals (!) .
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The order of the trial court was therefore set aside, and the Chamber Summons was allowed, permitting the petitioner to proceed with substituting the legal heirs of the deceased defendants (!) .
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Additionally, the petitioner was granted liberty to file appropriate applications to bring the heirs of other respondents, who had also expired, on record before the trial court (!) .
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The case underscores the importance of adhering to procedural rules designed to facilitate the proper management of pending cases involving deceased parties, and procedural lapses can be rectified if proper notices are issued as mandated (!) (!) (!) .
Let me know if you need further analysis or specific legal advice.
Rule. Respondent No.1, the only contesting Respondent, waives service. By consent of Respondent No.1, rule is made returnable forthwith and heard finally.
2. This Writ Petition has been filed challenging the order dated 27th August, 2015 passed by the Bombay City Civil Court at Bombay in Chamber Summons No.2836 of 2013 in Suit No.9046 of 2000.
3. This Chamber Summons was filed by the original Plaintiff (the Petitioner herein) to bring the legal heirs of deceased Defendant Nos.2 and 4 on record. It is not in dispute that Defendant Nos.2 and 4 were represented by advocates before the Trial Court. Defendant No.2 expired on 21st March, 2005 and Defendant No.4 expired on 28th December, 2008. It is, in these circumstances, that the Chamber Summons was filed for bringing their legal heirs on record.
4. The delay in filing this application was sought to be explained by the Plaintiff that there was no intimation given by the Defendants' advocate as required under Law, and therefore, the Chamber Summons ought to be allowed. The trial court inquired the relationship of the Plaintiff with the deceased Defendants, when it was stated that the deceased Defendants are the relatives of the Plaintiff. It is on this basis that the Trial Court came to the conclusion that the Plaintiff, being a relative of Defendant Nos.2 and 4 must have been aware of their death, and therefore, the Chamber Summons was wholly delayed and therefore, proceeded to reject the same.
5. I find that the Trial Court has wholly misdirected itself in passing the impugned order. Order XXII Rule 10A of the Code of Civil Procedure, 1908 (for short “the CPC”) casts a duty on the pleader to communicate to the Court, death of a party and reads thus:-
“ORDER XXII
DEATH, MARRIAGE AND INSOLVENCY OF PARTIES.
10-A. 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.”
6. What this rule stipulates is that it casts a duty on the pleader appearing for the party who has expired to inform the Court about the death of the party. Once this is done, the rule further requires the Court to give notice of such death to the other party. For this limited purpose, there is a deeming fiction which postulates that the contract between the pleader and the deceased party shall be deemed to subsist. In my view, this rule is a salutary provision and was enacted so as to get over the uncertainty which prevailed prior to 1st February, 1977 (the date from which this rule was brought into force). It is not unknown that the suits and appeals remain pending before the Courts for a long time and for the reasons beyond the control of all concerned. By the time suit or the appeal comes up for hearing, one or more parties may no longer be alive. This may not be to the knowledge of the other party which was required to act on account of the death of one party and might have unknowingly allowed limitation to run against him for making an application to bring the legal representatives of the deceased party on record. It is this uncertainty that has now been done away with by introduction of rule 10A under which specific obligations have been set out. The first obligation is that of the advocate appearing for the party who expires. This obligation is to inform the Court about the death of the party. Correspondingly, an obligation is also cast upon the Court to give notice of such death to the other party. This rule is mandatory because the period of limitation would have to be precisely worked out and the reasons, if any, for condoning the delay in making an application for setting aside the abatement and bringing the legal representatives on record have to be carefully evaluated. It is only when the fo
