GANGADHAR Vs. RAJ KUMAR

JUDGEMENT

(1.) Special leave granted.

(2.) One Shrikishan son of Surajmal Vaishya was the sole respondent in Civil Second Appeal No. 256, of 1976 on the file of the High Court of Madhya Pradesh. Jabalpur, Gwalior Bench. The sole respondent died on April 19, 1980. Surprisingly, Raj Kumar, who is the present respondent, himself applied by IA No. 1980/81 stating that he may be impleaded as an heir and legal representative of the deceased respondent. he being the adopted son of the deceased respondent or in the alternative he is the sole legatee under the last will and testament of the deceased. This application was made, to the Court an July 1, 1981. Immediately thereafter on July 15, 1981 I. A. No. 2110/81 was moved on behalf of the appellants for substitution. It was averred therein that the appellants came to know about the death of the respondent only when the so-called adopted son of the sole respondent moved an application No. 1980/ 81 on July 1, 1981 stating that the respondent has died on July 1, 1981. Thereafter they made inquiries about the heirs and legal representatives of the deceased respondent and learnt that he died without leaving behind him any heir and his property has escheated to the State of Madhya Pradesh. Approaching the matter from this angle, the appellants sought permission to substitute State of Madhya Pradesh as the successor to the property of the deceased-respondent. It was submitted that the appellants did not know about the death of the deceased and they were prevented by sufficient cause from moving the application for substitution in time and therefore delay may be condoned, abatement may be set aside and substitution be granted, The High Court held after taking into consideration the evidence produced by Raj Kumar, who sought substitution himself that he was the heir and legal representative of the deceased-respondent. The High Court, however, proceeded to examine that as the application for substitution was filed by the appellants 90 days after the death of the deceased-respondent and as the appeal has abated. whether the appellants had made out sufficient cause for condoning the delay in moving the application for substitution.

(3.) Now the fact remains that admittedly the appellants' claim that they came to know about the death of the deceased-respondent when the present respondent moved an application for substitution. Rule 10-A which has been added in Order XIlI of the Code of Civil Procedure by the Amending Act of 1976 provides that when a pleader appearing for a party to the suit comes to know of the death of the party, he shall inform the court about it and the court thereafter shall issue notice to the other party. In the case of an appeal, the word "suit" has to read as "appeal." This provision was introduced specifically to mitigate the hardship arising from the fact that the party to an appeal may not come to know about the death of the other. party during the pendency of the appeal, but when it is awaiting its turn for being heard. The appeal lies dormant for years on end one cannot expect the other party to be a watchdog for day to day survival of the other party. When the appeal on being notified for hearing is activated, knowledge occasionally dawns that one or the other party has not only died, but the time for substitution has run out, and the appeal has abated. In order to see that administration of justice is not thwarted by such technical procedural lapse, this very innovating provision has been introduced whereby, a duty is cast upon the learned Advocate appearing for the party who comes to know about the death of the party to intimate to the court about the death of the party represented by the learned counsel and for this purpose a deeming fiction is introduced that the contract between dead client and lawyer subsists to the limited extent after the death of the client.