SYED ALI Vs. SYED ABDUL RAHMAN

JUDGEMENT

(1.) The correctness and legality of the order of the learned District Munsif, Armoor in O.S.No. 97/89 on I.A.No. 324/95 dated 22-7-1996 is challenged. The petitioner is the plaintiff He filed an application under Section 151 of C.P.C. to reject the written statement filed on behalf of defendant No.2 by his advocate after the death of the party. Notice of the petition has been served on the contesting respondents and there is not representation. Having due regard to the simple questions involved in this petition, the main matter has been heard at the stage of admission for disposal according to law. The uncontroverted facts leading to this revision petition are that defendant No.2, viz., Syed Mohammed died on 16-3-1990 during pendency of the suit and his written statement was filed into Court on 20-3-1990 by his advocate. It appears that he had sworn to the affidavit and verified the written statement on 12- 3-1990. Therefore the contention that by the time the written statement was filed, the advocate had ceased the authority to act and plead for defendant No. 2, and therefore the written statement so filed on behalf of defendant No.2 shall be rejected. After hearing both sides, the learned District Munsif dismissed the application.

(2.) Mr. S. Niranjan Reddy, the learned advocate for the petitioner has pointed out that by virtue of Order 3, Rule 4 sub-clauses (1) and (2) of C.P.C. a pleader who is authorised by a person to act and plead shall cease to have the authority as such appointment which has to be filed into Court under sub-clause (1) shall be deemed to be in force only until it is determined or until the client or pleader dies or until all proceedings in the suit are ended so far as his clients are concerned in question. He also points out that by virtue of Order 22, Rule 10-A of CPC the relationship between the pleader and the deceased client shall be deemed to subsist only for the purpose of giving notice by such advocate to the other party and not for any purpose. In this regard he has relied upon a pronouncement of the Supreme Court in Gangadhar vs. Raj Kumar and of Bombay High Court in Bai Pani vs. Madhabhai Galabhai PateP. Such a contention of the learned advocate has all the force in view of the considered legal position emanating from such provisions in addition to the other provisions of C.P.C.

(3.) In this case, admittedly defendant No.2 was dead by the time the written statement was filed on 20-3-1990. It was said to have been signed and verified on 12-3-1990 although defendant No.2 died on 16-3-1990. Order 8, Rule 1 of C.P.C. contemplates that the defendant shall at or before the first hearing or within such time as the Court may permit, present a written statement of his defence, thereby meaning that normally speaking the law contemplates that the party himself has to present a written statement of his defence at or before the first hearing or within such time as the Court may permit. But in view of Order 3 Rule 1 of C.P.C. such an act of the defendant in regard to presenting the written statement may be done by a recognized agent or by pleader. The right of the plaintiff shall not go away if the right to sue survives as contemplated under Order 22 Rule 4 of C.P.C. For that purpose, an application has to be made under Rules 3 and 4 of Order 22 to bring the legal representatives of the plaintiff or the defendant on record as the case may be, within the period of limitation prescribed therein or else it will abate having effect of dismissal of the suit or the proceedings, as the case may be by virtue of Rule 9 of Order 22 of C.P.C. Therefore the interregnum between the date of the proceeding or the date of abatement or the date of bringing the legal representatives on record creates a vaccum in regard to the cause of action to survive depending upon the conduct of the parties. Till such an event occurs there should be nothing to be done by an advocate appearing for a party who dies pending proceedings. Order 3, Rule 4, sub-clause (1) of C.P.C. prevents a pleader from acting for any person in any Court, unless he has been appointed for the purpose by such a person by a document in writing signed by such person or his recognised agent or by some other person duly authorized by or under a power of attorney to make such appointment. In other words a pleader acts and pleads only under the authority of appointment by means of a document in writing as prescribed in the provision. Such an appointment is deemed to be in force until determined. The determination of such an appointment as contemplated in sub-clause (2) of Order 22 Rule 4 is (1) with the leave of the Court, (2) by a writing signed by the client or (3) pleader dies, or (4) until all proceedings in the suit are ended so far as regards the client. In other words the appointment so made under Clause (1) shall continue only under four circumstances stated above and not beyond that, among which the death of the client or pleader is one. Logically and legally the appointment of a pleader under Sub-Clause (1) ceases to exist the moment the client dies and obviously on the death of the pleader himself. It is stated that the power of attorney and / or vakalat will be taken away with him by the pleader or the client as the case may be on his death. Such a legal position has been made in view of the authoritative pronouncement of the Supreme Court in Gangadhar's case (1 cited above). In this context it was pointed out by the Supreme ourt as follows: