2018:BHC-AS:33099 dik IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 11443 OF 2015 Ida Fernandes ...Petitioner vs Cecilia Fernandes & Ors ...Respondents .....

Mr Denzil D'mello for the Petitioner.

Mr Sunny Yadav I/b V.K.Damle for Respondent No.1.

.....

CORAM : B.P.COLABAWALLA, J.

DECEMBER 03, 2018.

ORAL JUDGMENT :

Rule. Respondent No.1, the only contesting Respondent, waives service. By consent of Respondent No.1, rule is made returnable forthwith and heard finally.

2 This Writ Petition has been filed challenging the order dated 27^th August, 2015 passed by the Bombay City Civil Court at Bombay in Chamber Summons No.2836 of 2013 in Suit No.9046 of

2000.

3 This Chamber Summons was filed by the original Plaintiff (the Petitioner herein) to bring the legal heirs of deceased Defendant Nos.2 and 4 on record. It is not in dispute that Defendant Nos.2 and 4 were represented by advocates before the Trial Court. Defendant No.2 expired on 21^st March, 2005 and Defendant No.4 expired on 28^th December, 2008. It is, in these circumstances, that the Chamber Summons was filed for bringing their legal heirs on record.

4 The delay in filing this application was sought to be explained by the Plaintiff that there was no intimation given by the Defendants' advocate as required under Law, and therefore, the Chamber Summons ought to be allowed. The trial court inquired the relationship of the Plaintiff with the deceased Defendants, when it was stated that the deceased Defendants are the relatives of the Plaintiff. It is on this basis that the Trial Court came to the conclusion that the Plaintiff, being a relative of Defendant Nos.2 and 4 must have been aware of their death, and therefore, the Chamber Summons was wholly delayed and therefore, proceeded to reject the same.

5 I find that the Trial Court has wholly misdirected itself in passing the impugned order. Order XXII Rule 10A of the Code of Civil Procedure, 1908 (for short “the CPC”) casts a duty on the pleader to communicate to the Court, death of a party and reads thus:-

“ORDER XXII DEATH, MARRIAGE AND INSOLVENCY OF PARTIES.

10-A. Duty of pleader to communicate to Court death of a party.-

Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.”

6 What this rule stipulates is that it casts a duty on the pleader appearing for the party who has expired to inform the Court about the death of the party. Once this is done, the rule further requires the Court to give notice of such death to the other party. For this limited purpose, there is a deeming fiction which postulates that the contract between the pleader and the deceased party shall be deemed to subsist. In my view, this rule is a salutary provision and was enacted so as to get over the uncertainty which prevailed prior to 1^st February, 1977 (the date from which this rule was brought into force). It is not unknown that the suits and appeals remain pending before the Courts for a long time and for the reasons beyond the control of all concerned. By the time suit or the appeal comes up for hearing, one or more parties may no longer be alive. This may not be to the knowledge of the other party which was required to act on account of the death of one party and might have unknowingly allowed limitation to run against him for making an application to bring the legal representatives of the deceased party on record. It is this uncertainty that has now been done away with by introduction of rule 10A under which specific obligations have been set out. The first obligation is that of the advocate appearing for the party who expires. This obligation is to inform the Court about the death of the party. Correspondingly, an obligation is also cast upon the Court to give notice