Judgment:
V.S. Aggarwal, J.
1. The present revision petition is directed against the order passed by the learned Rent Controller, Kurukshetra, dated 25.11.1981 and of the learned Appellate Authority, Kurukshetra, dated 2.2.1982. The learned Rent Controller had passed an order of eviction against the petitioner and the appeal was dismissed by the learned Appellate Authority.
2. The facts are that the respondents had filed a petition for eviction of the petitioner with respect to the suit premises. It has been asserted that the rent is Rs. 150/- per month. The petitioner is running a shop of cycle repair. It is lying locked for more than four years before the filing of the petition. It was further alleged that certain arrears of rent were due.
3. The petition for eviction was contested. It was denied that the disputed property was lying locked and that the petitioner had stopped the work of cycle repair. Plea was raised that the arrears of rent had been tendered.
4. The learned Rent Controller had closed the evidence of the petitioner and thereupon proceeded to pass an order of eviction holding that the property in question is lying locked for more than four years before the filing of the petition. It was further held that the property in question has become unfit and unsafe for human habitation. In appeal, the learned Appellate Authority concluded that the evidence of the petitioner was rightly closed.
5. Earlier, the matter was heard and it was felt that the learned Appellate Authority should have touched as to whether the grounds of eviction were available or not. But before the matter could be pronounced, it was brought to the notice of the Court that the petitioner had died on 28.10.1982. The legal representatives of the petitioner have not been brought on the record and, therefore, the petition must be held to be abated. When this fact was brought to the notice of the Court, the revision petition was directed to be relisted. Both the learned counsel informed that they had written to the petitioner as well as the respondent but no answer is forthcoming. The factum of the death of the petitioner was not denied.
6. The attention of the Court was drawn to Order 22 Rule 10-A of the Code of Civil Procedure (for short, 'the Code') so as to bring home the fact that the petition should not be allowed to abate under the facts and circumstances of the case. Order 22 Rule 10-A of the Code had been added by virtue of the amendment in the Code with effect from 1.2.1977. It reads as under:-
'10-A. Duty of pleader to communicate to Court death of a party:- Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.'
7. It is abundantly clear from the aforesaid that the said amendment has been enacted to avoid unnecessary delay when the other party may not know the death of the party. In this process, it provides that when a pleader comes to know of the death of that party, he shall inform the Court about it. The contract between the pleader and the deceased party shall be deemed to subsist because the Court has to inform to the opposite counsel about it. The scope of Order 22 Rule 10-A of the Code had been considered by the Supreme Court in the case of Gangadhar and Anr. v. Shri Rai Kumar, AIR 1983 Supreme Court 1202, wherein the Supreme Court held as under:-
'Rule 10-A which has been added in Order XIII 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 watch-dog 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 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.'
8. Almost identical findings were recorded by the Supreme Court in the case of United Bank of India v. Smt. Kanan Bala Devi and Ors., AIR 1987 S.C. 1510. Herein, the Supreme Court recorded as under:-
'Of course, the law under the present Civil Procedure Code obviate this difficulty to some extent under Order 22 Rule 10-A. Under the rule, when a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, whereupon the Court shall give notice of such death to the other party. However, this provision not being absolutely mandatory and castes a duty only on the pleader, we thought it necessary to answer the question of law involved in this appeal.'
9. In the present case in hand, the learned counsel for the respondent had informed even the petitioner's counsel about the death of the petitioner. As mentioned above, this fact is not being controverted. The death is stated to have taken place 18 years ago. Till date, no application has been filed for bringing the legal representatives on record.
10. However, when such information has been given and still application has not been filed to bring on record the legal representatives, in that event, it is not the law that the petition will not abate. In fact, such an information was given on 10.11.1983 vide Civil Misc. application No. 5237-CII of 1983 seeking early hearing of the revision. The application for early hearing was dismissed but information was passed. Once the information has been given and the legal representatives are not impleaded, necessarily the petition must abate. Reference with advantage can be made to the decision of the Orissa High Court in the case of Braja Behera and Ors. v. Gandaram Behera and Ors., AIR 1990 Orissa, 94, wherein the Court held that a petition or appeal will still abate. The responsibility to implead the legal representatives is not absolved. The precise findings read as under:-
'... However, no penalty has been provided for non-compliance of the provision. This provision is procedural. In absence of penalty for non-compliance of the procedural provision, the same is to be interpreted as directory and not mandatory. No doubt, non-compliance with such a provision would be a ground to condone the delay in case the appellants satisfy the Court that the deceased having appeared, they remained assured and did not become vigilant to keep note of the whereabouts of the appearing respondent who died subsequently. This provision, however, does not absolve the appellants from taking steps for substitution non-compliance of which provides for a penalty. In this appeal, appellants did not rightly take a stand that they did not know the procedure since on earlier occasion, they had already taken steps for substitution of a deceased party. When the appellants had knowledge of the death and had been acquainted with the procedural law, non-compliance of Order 22, Rule 10-A C.P.C. is not a sufficient cause either for condonation of delay or for setting aside abatement. Application for setting aside abatement has thus, no merit on ground made out by the appellants and accordingly, petition for substitution is not entertainable.'
11. Identical is the position herein. For 18 years, no attempt has been made to bring on record the legal representatives. The necessary consequence must, therefore, follow that the revision petition must be held to be abated. Order is made accordingly. Keeping in view the aforesaid, no opinion is being expressed on the merits of the matter.