SOOKA LAL Vs. KISHAN & ANR

JUDGEMENT

(1.) Provisions contained in Rule 10-A of Order 1 of the Code of Civil Procedure, have been introduced specifically to mitigate the hardship arising from the fact that the party to a proceeding may not come to know about the death of the other party during the pendency of the proceeding when it is awaiting its turn for being heard. This duty is cast upon the 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 him 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. Rule 10-A was inserted by Code of Civil Procedure (Amendment) Act, 1976 to impose an obligation on the pleader of the parties to communicate to the Court the death of the party represented by him.

(2.) What is the effect of non-compliance of Rule 10-A ? Whether the provisions of Rule 10-A are procedural ? These legal questions are to be examined in this revision which arises from the order dated April 25, 1994 and March 23, 1990 respectively passed by the lower appellate Court and the trial Court whereby the application filed by the plaintiff petitioner Sooka Lal (since dead and represented through L.R.'s) under Order 22 Rules 4 and 9, CPC was rejected.

(3.) The facts that lie in a short compass are that plaintiff petitioner Sooka Lal (for short plaintiff instituted a suit for permanent injunction against Jeewan and Radhey Shyam. During the pendency of the suit Jeewan expired on December 15, 1987. The plaintiff moved application under Order 22 Rules 4 and 9, CPC, alongwith an application under Section 5 of the Limitation Act on July 27, 1988 for setting aside abatement of the suit and for bringing on record the legal representative of the deceased Jeewan. In the application it was stated that the plaintiff was an old person and his sons Krishna Nand who was to look after the cases, had been transferred from Karauli and was re-transferred on July 23, 1988. Thereafter he went to Gangapur City and when asked the Counsel about the progress of the case, he was informed by the Counsel that application for bringing on record the legal representative of deceased Jeewan had to be filed. After making inquiry about the legal representative of deceased Jeewan, application was filed on July 27, 1988. It was also stated that the plaintiff had no knowledge that application had to be filed within 90 days. Plaintiff also submitted his affidavit in support of the application. The defendant contested the application refuted its contents and stated in reply that son of plaintiff was a clerk in Sub-Divisional office as such he was expected to have knowledge of the period of limitation. As the application was barred by limitation it could not have been accepted.