THE HON’BLE SRI JUSTICE SAMBASIVA RAO NAIDU CIVIL REVISION PETITION No.4890 OF 2016

ORDER :

Being aggrieved by the Order dated 22.07.2015 in I.A.No.107 of 2011 in O.S.No.93 of 2007 on the file of Senior Civil Judge, Vikarabad, whereunder her application to condone the delay of (689) days in filing the petition to bring the legal representatives of 1st respondent/defendant No.1 was dismissed, the petitioner/plaintiff has filed this Civil Revision Petition under Article 227 of Constitution of India sought to set aside the Order and sought for condoning the delay in filing the petition on the following grounds:

The Court below failed to take into consideration the provisions of Order XXII Rule 10-A CPC which provides that the counsel appearing for any party on coming to know about the death of his party is under obligation to inform the Court about such death and give notice of the same to the opposite party and only upon such information the other side is expected to file appropriate application to bring the legal representative of the deceased party. But in the case on hand admittedly there was no such information by the other party.

2. But, the Court below wrongly on the assumption that in view of the relation between the parties, the petitioner might have come to know about the death of 1st respondent defendant and failed to file petition within time and dismissed her application. The petitioner has claimed that in view of the partition suit that was filed by the petitioner, the relations between the parties were strange. The petitioner has been staying away from the property and from the opposite party. She had no occasion to know the death of 1^st respondent.

3. Admittedly the respondent did not file any memo as required under Order XXII Rule 10-A CPC informing the death of the deceased respondent defendant, nor have they furnished the details of the proposed legal representatives. Therefore, the Court below could not have dismissed their application and sought to condone the delay in filing the required applications.

4. As could from the impugned order it shows that the petitioner plaintiff has filed O.S.No.93 of 2007 for partition of the suit schedule properties. It also appears that the 1^st respondent/defendant died on 14.02.2008. But, the petitioner did not file any petition within the period of limitation to bring the legal representatives of the 1st respondent/defendant No.1, but filed the above referred interlocutory application under Section 5 of Limitation Act with a prayer to condone the delay of (689) days on the ground that the counsel for the respondent who was required to inform the death of his party and to inform the details of proposed legal representative as per Order 22 Rule 10-A CPC did not furnish those details, thereby prayed for condoning the delay.

5. However, the respondents have filed counter stating that the petitioner has visited the house of 1^st respondent in connection with the death rituals. Therefore, such a delay of (689) days in filing the petition cannot be condoned. The Court below having accepted the contentions raised by the other side, and by holding that the petitioner who has got relation with the opposite party might have visited the house of respondent and might have known the death, but failed to file the appropriate applications within the time of limitation, thereby, dismissed the petition.

6. Before going to the respective contentions of the party, it is quite necessary to have a look at Order XXII Rule 10-A CPC:

“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.”

7. Therefore, according to the above referred Rule, whenever a Pleader appearing for a party to the suit, came to know of the death of his party, he is supposed to i