1985 Supreme(MP) 714

IN THE HIGH COURT OF MADHYA PRADESH
T. N. Singh, J.
Surajpal - Appellant
Vs.
Prabhudayal - Respondent
M. A. No. 152 of 1977 (G)
Decided On : 03-12-1985

Headnote:Civil Procedure Code, 1908 – O.22, R. 10 – A – enquiry as to knowledge of date of death should be made – onus does not lie only on one party.

        Short Note

       1. Gangadhar (AIR 1983 SC 1202) leaves no option to me except remanding the matter to the Court below.

       2. On 1 – 2 – 1977 Civil Procedure Code Amendment Act, 1976, came into force, as a result of which Rule 10 A was inserted in Order 22, C.P.C. The impugned order in this case was passed on 6 – 10 – 1977 and as such it was the bounden duty of the Court below to consider the provisions and render decision in the light of the said provision. This not having been done, the impugned order is not sustainable in law. The decision in Gangadhar (supra) is the vital and high authority for this. It was held by their Lordships that the law on the question of abatement has radically changed by the insertion of new rule 10 A. The onus, therefore, does not lie wholly and solely on the plaintiff or appellant in the matter of substitution of deceased defendant or respondent. The enquiry in such matters must embrace Rule 10 – A also and the knowledge of the plaintiff or the appellant to which reference is made in Rule 4 of Order 22, CPC about the death of the deceased defendant co – defendant or appellant must also be determined with reference to Rule 10 – A.

       3. In the instant case, a bare perusal of the impugned order is sufficient to show that the Court below did not make proper enquiry in the matter inasmuch as the objection to the substitution application made by the plaintiffs respondents, to which a reference is made in para 7 of the judgment, and mandated such an enquiry. Whether, therefore, it was also in the knowledge of the plaintiff – respondent that the deceased – co – defendant respondent died on 23 – 1 – 1977 was also a matter to be enquired into. This evidently has not been done and the appellant's application for substitution, which was supported by prayer made under section 5 of the Limitation Act, was rejected taking erroneous view of the law.

       4. That being the position the impugned order must be and is set aside. The Court below is directed to reconsider the application of the defendant – appellant, who is also the appellant in this Court, on merits, in the light of the observations made in Gangadhar's case (supra). After a fresh enquiry is made into the matter, where, it will be open to both sides to adduce evidence on the question, a fresh decision shall be rendered in accordance with law. If the abatement is set aside and the application is accepted, the appeal shall be restored to file and heard on merits However, that will not debar the plaintiff, or for that matter even the defendant appellant from challenging any order passed in the case AIR 1983 SC 1202 followed. Appeal allowed.