IMPORTANT POINT
The court affirmed that a plaintiff can substitute legal representatives and condone delay if unaware of a defendant's death, emphasizing good faith in procedural compliance.

ORDER :

1. These batch of petitions filed under Article 227 of the Constitution contains a singular legal question and therefore, on the joint request of the parties, the matters were analogously heard and decided by this common order.

2. C.R.P.Nos.1391, 1402 and 1404 of 2024 are directed against common order dated 08.02.2024 passed in I.A.Nos.1264, 1265 and 1263 of 2023 in O.S. No. 876 of 2017 respectively and C.R.P.Nos.1493, 1507 and 1521 of 2024 are directed against common order dated 08.02.2024 passed in I.A.Nos.1266, 1268 and 1267 of 2023 in I.A.No. 514 of 2017 in O.S. No. 876 of 2017 respectively, both on the file of XVII Additional Senior Civil Judge, City Civil Court at Hyderabad.

3. The singular question deserves consideration is that when admittedly on the date of institution of suit, the sole defendant was not alive, but legal representatives of deceased defendant contested the matter to a great extent, whether the plaintiff’s application for substitution of legal representatives, condone delay and setting aside abatement were entertainable?

Factual backdrop:

4. The admitted facts between the parties are that the plaintiff instituted a suit in O.S. No. 876 of 2017 for eviction and recovery of arrears of rent. After receipt of summons, vakalath has been filed on behalf of respondent/defendant. During the course of proceedings, the written statement and counter affidavits were also filed. Further, three witnesses i.e., P.Ws.1 to 3 also entered into witness box on behalf of plaintiff.

5. The only defendant in O.S. No. 876 of 2017 was Mohd. Masood Ali Khan. The Chief Affidavit of one Maqsood Ali, S/o. Mohd. Masood Ali Khan/main defendant was filed on 21.07.2023. On 11.08.2023, the learned counsel for Mohd. Masood Ali Khan filed a memo and for the first time informed that the sole defendant in the suit died on 05.03.1989.

6. The plaintiff after coming to know about the death of the sole defendant, preferred the aforesaid applications for substitution of legal representatives etc., and clearly stated that the plaintiff was not aware about the death of Mohd. Masood Ali Khan and therefore, the delay in filing the applications for substitution of legal representatives may be condoned and abatement may be set aside.

7. The legal representatives filed reply and prayed for rejection of the above interlocutory applications.

8. The Court below after hearing both the parties passed the impugned common orders dated 08.02.2024 and allowed all the aforesaid applications by holding that the plaintiff was not aware about the death of the main defendant and came to know about it only when the aforesaid memo dated 11.08.2023 was filed. Thus, after considering certain legal pronouncements, all the applications were allowed by the Court below. The Court below gave a specific finding that the factum of death of original defendant was not known to the plaintiff. Had it been known, the plaintiff would have filed the suit against the legal representatives or else would have filed appropriate application for substitution of legal representatives with quite promptitude. Since plaintiff gathered knowledge about the death of the sole defendant only on 11.08.2023, the delay deserves to be condoned.

Contention of the petitioners/legal representatives:

9. The bone of contention of the learned counsel for the petitioners/legal representatives is that on the date of institution of the suit itself, the sole defendant was not alive. Thus, suit proceedings itself became a nullity in the eyes of law. Therefore, the question of substitution of legal representatives, condoning the delay and setting aside the abatement does not arise. Learned counsel for the legal representatives/petitioners herein fairly submitted that although, inadvertently the legal representatives contested the suit for seven years, filed written statement, additional written statement etc., all that will not make much difference because the suit itself is a nullity and not maintainable. It is argu