BABU RAM Vs. RAM KRISHAN GILL

JUDGEMENT

(1.) A preliminary objection has been raised by the learned counsel for the respondent in the appeal that Mr. Ram Krishan, the sole respondent, died on 14th January, 1975, and as no application was filed by the appellants to bring his legal representatives within the limitation, it is liable to be dismissed as having abated. He filed an affidavit of Bal Krishan Kohli son of the deceased that the respondent died on the above said date leaving two sons, three daughters and one widow as his heirs and legal representatives.

(2.) The question that arises for determination is as to whether the appeal has abated or not. In order to decide it, the relevant provisions of Order 22 of the Civil Procedure Code and the amendment made therein may be noticed. Rule 4 of Order 22, relates to the procedure in case of death of one of several defendants or of sole defendant. Sub-rule (1), of that rule inter alia says that where a sole defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. Sub-rule (3) provides that where within the time limited by law no application is made under sub-rule (1) the suit shall abate as against the deceased defendant. Rule 11 makes Order 22 applicable to appeals. It says that in the application of this Order to appeals, the word "plaintiff" includes as applicant, the word "defendant" a respondent and the word "suit" and appeal. The limitation for making an application under Rule 4 is ninety days.

(3.) It was seen that in a large number of cases, the plaintiff/appellant did not come to know about the death of the defendant/respondent and consequently in view of the above said provisions the suits/appeals abated for no fault of the dominus litis. In order to remove the hardship this High Court inserted Rules 2-A and 2-B after Rule 2 and amended Rule 4, on 17th March, 1975 and the amendments were published in the Gazette dated 11th April, 1975. No date of enforcement was mentioned therein and consequently these will be deemed to have come into force on the date of publication in the Gazette. By Rule 2-A, a duty was enjoined on every Advocate appearing in the case who became aware of the death of the party to the litigation to give intimation about the death of that party to the Court and to the person who was dominus litis. By Rule 2-B it was provided that the duty to bring on record the legal representatives of the deceased would be of the heirs of the deceased-defendant. In the substituted sub-rule (3) of Rule 4 it was said that if the application for bringing the legal representatives of the deceased-respondent was not made, the suit would not abate against the deceased. Rule 2-B and sub-rule (3) of Rule 4 read as follows :-