Notice to the legal representatives of a deceased defendant is mandatory before substitution and setting aside abatement, and the legal representatives have a right to be heard on their objections to the substitution.

JUDGMENT :

Misra, J. - Muralidhar Sahu (Defendant No. 16) died on 27th of June, 1964. On 16th of February, 1965; Plaintiff filed an application for substitution of his widow Raoutani Bewa and one Gopinath Sahu as the only heirs. The date of death was given as 24-7-1964. The finding of the learned Subordinate Judge is that this is not the correct date of death. The real date of death is 27-6-1964. It is not disputed that notice of the application for substitution was not issued to the legal representatives of the deceased. On 11th of March, 1965 the learned Sub-Judge passed an order allowing substitution of the widow and the son as Defendants Nos. 16 and 16.80 respectively. On 13th May, 1965, these two legal representatives filed objection regarding the date of death and also stating that there .was minor daughter of the deceased who had not been substituted. On 29th June, 1965 Plaintiff filed another application for substitution of the daughter. The matter was ultimately beard and the learned Subordinate Judge passed an order on 9-9-1965 allowing the daughter to be impleaded and rejecting the application of the legal representatives that the substitution should not have been allowed in their absence. It is to be noted that Defendants Nos. 3 to 8 also objected to the substitution. Their objection was over-ruled. Though admittedly no notice of the substitution application was served on Defendants Nos. 3 to 8 their objection was not entertained as they had appeared in the suit and in their presence substitution was allowed. Defendants nos 3 to 8 have filed no revision. The order of the learned Subordinate Judge over-ruling their objection need not therefore be considered in this revision.

2. The main questions for consideration in this revision are two fold:

(1) Whether the legal representatives of the deceased were entitled to notice of substitution; and

(2) Even if they were not entitled to notice whether they bad a right to get their objections against the substitution heard.

3. Mr. Mukherjee on behalf of the Plaintiff-opposite party very seriously contended that there being no specific provision under Order 22 Rules 3 and 4 for service of notice on the question of setting aside abatement notice was not mandatory or essential. The contention is wholly devoid of merit. It is to be noted that original Defendant No. 16 died on 27-6-1964 and three applications for Sub-section, setting aside abatement and condonation of delay u/s 5 of the Limitation Act were filed on 16-2-1965 about seven and half months after the suit had abated against Defendant No. 16. In both the applications for setting aside abatement and u/s 5 of the Limitation Act, Plaintiff bad to make out that there was sufficient cause for not filing the application for substitution within 90 days from the date of death. A valuable right had accrued to the legal representatives of the deceased after the suit abated against the original Defendant No. 16. In any case of infringement of right whether the statutes specifically provide for service of notice or not, notice is mandatory. It is unnecessary to refer to plethora of authorities. It is sufficient to refer to M. Nizamul v. Mst. Bibi AIR 1954 Pal. 61, and Om Srun v. Gur Harain AIR 1965 P&H 667. This doctrine is based on principle of natural justice that the case against a party or a person who at the moment is not actually a party but is going to be impleaded as a party in future is not to be affected without his being heard and being given full opportunity of adducing evidence in defence. A similar matter was discussed in Prahald Prusty v. Sk. Abdul Raheman 32 C.L.T.467, under Order 9, Rule 4 CPC which does not prescribe for service of notice. This Court observed thus:

The position therefore is that generally a notice to the opposite party is not essential in a proceeding under Order 9, Rule 4, Code of Civil Procedure. There may, however, be cases where a valuable right of the Defendant may be affected. In such cases servi