Legal heirs have the right to pursue claims for compensation despite procedural delays if the original petitioner dies before finalizing the case, contingent on the legal duty of counsel to inform the court of such death.

JUDGMENT :

1. Mr. Bose, learned advocate appears on behalf of petitioners. He submits, his clients are legal heirs of petitioner/claimant before the Court below in Arbitration Misc. Case no.57 of 2009. Said petitioner died on 11^th July, 2021. Prior thereto he had instructed his learned advocate to prosecute the arbitration case for enhancement of the compensation for acquiring his land.

2. The arbitration case was duly prosecuted by learned advocate engaged. There was award by judgment dated 26^th March, 2022 enhancing the compensation and direction for payment of interest. On getting intimation thereof, petitioners applied for substitution, to be able to obtain the enhanced compensation. The substitution application made along with applications for condonation of delay and setting aside abatement, were rejected by impugned order dated 18^th July, 2022. He submits further, no appeal has been preferred against said award, to knowledge of his clients.

3. Mr. Kar, learned advocate, Senior Panel Counsel appears on behalf of Union of India. On query from Court he submits, petitioners are the legal heirs and entitled to the enhanced compensation. His client has already deposited for disbursement. Mr. Sharma, learned advocate, Additional Government Advocate appears on behalf of State and submits, his client is the disbursing authority.

4. It appears, petitioners had made three several applications. The first was under order XXII rule 3 in Code of Civil Procedure. Second application was under order XXII rule 9, for setting aside abatement and the third, for condonation of delay under section 5 in Limitation Act, 1963. The applications were all dismissed. Reason given in impugned order is extracted and reproduced below.

“As it appears, from the facts and circumstances of the case, only due to absence of knowledge of the counsel with regard to the death of the petitioner, no proper step could be taken to set aside the abatement order. But on the other hand, the petitioners being the wife and son of the deceased-petitioner, they have sufficient knowledge with regard to death of the petitioner. From the aforesaid conduct of the petitioners, it appears that they don’t bother to bring the matter of death of the petitioner to the notice of the Court and as such, the Court passed the final order. Considering the fact that despite the petitioners having their knowledge about the death of the deceased-petitioner remained silent for a long time, this Court found no sufficient reason to condone the delay and as such, the petition stands rejected and consequently, the petitions filed under Order-22 Rule-3 & 9 also cannot be entertained and as such, the same stand rejected.”

5. On query from Court Mr. Bose points out the causes given by his clients for have not having informed fact of death during pendency of the case. Paragraphs 2 and 3 from the application under order XXII rule 9 are reproduced below.

“2. That, thereafter, when the counsels telephoned in the given number, the wife of the petitioner informed the counsel that her husband Ramesh Patra has already been passed away on 11.07.2021 i.e. the during the period of Covix-19 and deceased petitioner is survived by her as his wife and Sudip Kumar Patra as his son. She also told that after her husband’s early death, she and her son were completely broken down and could not inform the counsels about said demise of Ramesh Patra.

3. That, in the event of death of the original petitioner Ramesh Patra on 11.07.2021 and without the substitution of has legal heirs in time, the case was automatically abated and order passed in favour of the deceased Ramesh Patra on 26.03.2022.”

6. Order XXII rule 10-A provides for duty of pleader to communicate