The legal representatives of a deceased defendant must be impleaded in a Suit if they show sufficient grounds for their delay in application, and the plaintiff has a duty to inform the Court of their existence.

COMMON ORDER:  

The subject matter of the present Civil Revision Petitions (C.R.Ps) are docket orders dated 05.01.2024 passed by the II Additional District Judge, Warangal, in I.A.Nos.8, 9, 10 and 11 of 2024 in O.S.No.125 of 2022, respectively. The I.As. were filed by the Legal Representatives of the defendant No.11. The petitioners are the plaintiffs.

2. By the said docket orders, the Trial Court set aside an ex parte order dated 12.11.2015 passed against the deceased defendant No.11, and also allowed the applications filed by the respondent Nos.2 to 6 herein condoning the delay of 190 days in filing the petition to set aside the abatement to bring the legal representatives of the deceased defendant No.11 and permiting the petitioners to come on record as the legal representatives of the deceased defendant No.11.

3. As stated above, the petitioner before the Court is the plaintiff in the Suit (O.S.No.125 of 2022), which is filed for partition and separate possession of the suit schedule property.

4. Learned counsel appearing for the petitioner/plaintiff seeks setting aside of the impugned docket orders on the ground that the defendant No.11 was set ex parte by an order dated 12.11.2015 and the legal representatives of the defendant No.11 filed the applications on 25.06.2023 without giving sufficient reasons for the delay in filing the said application. Counsel submits that the legal representatives of the defendant No.11 also did not give any notice of the I.As to the petitioner/plaintiff.

5. Learned counsel relies on Order XXII Rule 4 (4) of The Code of Civil Procedure, 1908 (CPC) in support of the submission that the Court may exempt the plaintiff from substituting the legal representatives of any defendant who has failed to file a Written Statement and in other circumstances.

6. I have heard learned counsel appearing for the petitioner/plaintiff.

7. The impugned docket orders make it clear that the applications of the legal representatives of the defendant No.11, namely, the wife, 2 daughters and 2 sons of the deceased defendant No.11, were allowed and the legal representatives were made parties under Order IX Rule 7 of the C.P.C, also for setting aside an ex parte order against the defendant No.11.

The docket orders further record that the legal representatives informed about the death of the defendant No.11 on 25.07.2022 and filed applications under Section 5 of The Limitation Act, 1963 , Order XXII Rules 4 and 9 of the C.P.C. respectively.

8. Order IX Rule 7 of the CPC provides for the procedure where the defendant appears on an adjourned date of hearing and assigns good cause for the previous non-appearance. Upon the defendant doing so, the Court can permit the defendant to be heard in answer to the Suit as if the defendant had appeared on the day fixed for his appearance, subject to the defendant being put on terms as though fit by the Court. Order IX Rule 7 of the CPC makes it clear that the defendant can be permitted to defend the Suit despite being absent on a day when the Suit was fixed for hearing provided the defendant gives good reasons as to such absence.

9. In the present case, the defendant No.11 was set ex parte by a docket order dated 12.11.2015 on the ground that the defendant had not made any representation and had also not filed his Written Statement.

10. Paragraph No.4 of the affidavit filed by the legal representatives of the defendant No.11 states the circumstances of their knowledge of the Suit in April/May 2023. Paragraph 4 also states that the plaintiff sent a reply notice through her Advocate after receiving the Legal Notice of the legal representatives dated 08.05.2023. The contents of paragraph 4 make it clear that the plaintiff did not take steps to inform the Court of the existence of the legal representatives of the defendant No.11 and that the legal representatives were hence constrained to file an application for being impleaded as defendants on 25.06.2023.

11. Further, paragraph 5 states that the