L.A. COLLECTOR Vs. SAMBHU DEB BARMA

JUDGEMENT

(1.) We have heard the learned counsel for the parties.

(2.) The Land Acquisition Collector, West Tripura, representing the State of Tripura has filed Civil Misc. Appeal No. 58 of 1978 against Sambhu Deb Barma, respondent. It appears from the instant application that Sambhu Deb Barma, the sole respondent died on 12th March, 1983. The instant application was filed on 27th April, 1983, by the present applicants claiming to be the legal representatives of Sambhu Deb Barma, deceased and praying that they may be substituted in place of Sambhu Deb Barma in the appeal. The applicant No. 1 is the widow of Sambhu Deb Barma, whereas the applicants No. 2, 4 and 6 are his sons and the applicants No. 3 and 5 are his daughters. A copy of this application was served on the learned counsel for the appellant on 27th April, 1983. Thus the appellant came to know of the death of Sambhu Deb Barma. However, no application was filed by the appellant for bringing on record the legal representatives of the deceased respondent. The question which now arises is as to whether the appeal has abated. True, it is that, no application was filed by the appellant within 90 days of the death of the sole respondent for bringing on record the legal representatives. However, the legal representatives of Sambhu Deb Barma themselves filed the instant application within the said period of 90 days and have prayed that they should be brought on the record as legal representatives of the deceased respondent. Rule 4 of Order 22 C.P.C. which governs the instant application prescribes the procedure to be followed in case of death of the respondent. It may be mentioned here that in view of Rule 11 of Order 22 C.P.C. the words 'plaintiff, 'defendant' and the 'suit' in that Order include 'appellant', 'respondent' and 'appeal' respectively. Rule 4 of order 22 requires an application for the making of the legal representatives of the deceased plaintiff or defendant a party to the suit. If no application is made within 90 days from the date of death the appeal in case of the death of the respondent abates. But if an application is moved within time the Court has to see as to whether the persons sought to be substituted in place of the deceased are his legal representatives and on being satisfied that the said persons are the legal representatives the order for bringing them on record in place of the deceased would be parssad. Rule 4 of Order 22, however, does not say in specific terms as to who is to make such an application. If there is an application before the Court setting out the factum of the death of the respondent and also stating as to who are the legal representatives of the deceased respondent that application would be taken to have been moved in accordance with the provisions of Rule 4 of Order 22. Ordinarily in the case of the death of a respondent the appellant has to move such an application and if the appellant fails to file the application within the period prescribed by law the consequence has to follow. However, if the appellant does not file such application but the legal representatives of the deceased respondent file the application within the period of limitation the appeal cannot be said to have been abated. The view we have taken finds support from a decision of the Supreme Court in Union of India Vs. Ram Charon, AIR 1964 SC 215 , wherein referring to Order 22, Rule 4, it was laid down:

(3.) In the case in hand the respondent had died on 12th March 1983 and an application was moved by the legal representatives of the deceased respondent on 27th April, 1983. No objection has been filed to that application, the applicants claiming themselves to be impleaded in the appeal. Requirement of Rule 5 of Order 22 C.P.C. thus stands complied with. An application has been moved to-day by the appellant also serving a copy on the learned counsel for the legal representatives of the deceased respondent stating, inter Alia, that the legal heirs had made an application under Order 22, Rule 4 for substitution and that the appellant bona fide believed that the said application by the legal heirs being in time and the said legal heirs having prayed for substitution of their names for the deceased-respondent, no separate application would be required to be filed. The explanation given by the appellant for not moving the application for substitution within time is that it was led to believe that as there was already an application moved by the respondent, no further application was required to be made by it. Since the law does not say as to who was to move the application and that there is an application in writing for bringing on record the legal representatives of the deceased respondent, we are inclined to accept the contention of the appellant that it bona fide believed that no further application was needed. The appellant has not contended in the application filed to-day that there are other legal representatives of the deceased respondent. The appellant has, therefore, accepted that the applicants who have moved the application in Misc. Case No. 161 of 1983 are the legal representatives of Sambhu Deb Barma who died on 12th March, 1983. They are therefore, to be substituted in his place in the appeal.