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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Tarlok Singh Chauhan, J.
Union Of India Through Secretary, Ministry Of Defence, South Block, New Delhi - Appellant
Vs.
Laxmi Nand, S/o Sh. Vija Nand - Respondent
Civil Miscellaneous Petition (Main) No. 827/2021 IN 385/2020
Decided On : 19-07-2022
Civil Procedural Code, 1908 - Sections 151 & 153 - Order 1 Rule 10 - Order 22 Rule 10 and 4 - Indian Limitation Act, 1963 - Section 22, 21 - Suit in name of wrong plaintiff – Bringing legal heirs on record – Con donation of delay - Duty of pleader to communicate to Court death of a party - Effect of substituting or adding new plaintiff or defendant- applicant/petitioner, came to its notice only when the legal representatives of the deceased respondent filed an application for release of the amount - It is thereafter that the petitioner/applicant has filed the instant applications for bringing on record the legal representatives of deceased respondent after condoning the delay in filing the same - When LRs of deceased litigant have not been brought on record within 90 days, then such proceedings stand abated in the petition against a dead person and rendered such petition nullity. (Para 14).
Finding of the Court :
Respondent/non-applicant has not denied aforesaid contention and only plea raised is that respondent had died in year 2018 whereas present application was filed only in year 2021 after main petition stood abated - It also needs to be noticed that in reply to application under Section 5 being CMP(M) it has been averred that delay in filing of application being CMP (M) is deliberate and intentional, but respondent/non-applicant could not substantiate such plea - Tested on anvil of exposition of law, as referred to above, it needs to be noticed that application for bringing on record legal representatives of deceased respondent has been filed by applicant- Union of India on account of an impersonal machinery (no one in charge of matter is directly hit or hurt by judgment sought to be reviewed) and some leeway should be made in its favour, especially in matters relating to the death of opposite party, that too, after decision of case.
Result : Applications allowed
ORDER :
CMP(M) Nos. 827/2021 & 850/2021 in CMP (M) No.385/2020
A short, but an interesting controversy has arisen in this case.
2. The Union of India has filed the review petitions against the judgment dated 24.8.2017 passed by this Court in RFA No. 265/2005 and RFA No. 266/2005. These review petitions were filed on 7.9.2019, but remained under objections and were formally registered after removing the objections on 19.6.2020. However, after the judgment had been rendered in the aforesaid RFAs but before the review petitions could be filed, respondent No.1 Laxmi Nand in RFA No. 265/2005 died on 27.6.2018. This fact, according to the applicant/petitioner, came to its notice only when the legal representatives of the deceased respondent Laxmi Nand filed an application for release of the amount on 30.4.2021. It is thereafter that the petitioner/applicant has filed the instant applications for bringing on record the legal representatives of deceased respondent Laxmi Nand after condoning the delay in filing the same.
3. According to the applicant, the application for bringing on record the legal representatives of respondent No.1 Laxmi Nand is within time if the period is computed and calculated from the date of knowledge.
4. The legal representative of the respondent has contested the applications by filing reply(ies), wherein it has been averred that the applications without making a proper prayer for setting aside abatement are not competent and maintainable and therefore, the proposed legal representatives of the deceased respondent cannot be brought on record.
5. I have heard the learned counsel for the parties and have also gone through the material place on record.
6. Order XXII Rule 4 of the Code of Civil Procedure (for short, the Code) applies to cases of the death of defendants, who died during the proceedings and not in respect, who died prior to the institution of the proceedings. On the other hand, Order 1 Rule 10 of the Code reads as under:-
(2) Court may strike out or add parties.—The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended.- Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the Indian Limitation Act, 1877 (XV of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.
7. Order I Rule 10(5) of the Code states that subject to the provisions of the Indian Limitation Act, 1877 (XV of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on t
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