D. Jagga Rao (Died) and ors. Vs. N. Dharma Rao (Died) and ors. - Court Judgment

Excerpt:
- - jagga rao, it was endorsed that he died. the learned counsel further submits that the delay of 9 years 9 months 29 days is so enormous, that even with the best of explanations, it cannot be condoned.orderl. narasimha reddy, j.1. these three revisions arise out of the steps taken in o.s. no. 48 of 1997 in the court of principal senior civil judge, srikakulam. for the sake of convenience, the parties are referred to, as arrayed in c.r.p. no. 4193 of 2007.2. respondents 1 to 3 (for short 'the respondents) filed the suit for the relief of declaration of title and recovery of possession of the suit schedule property against the petitioners 1 and 2, and respondents 4 to 13. on the summons sent to the deceased-1st petitioner, i.e. d. jagga rao, it was endorsed that he died. therefore, the respondents filed i.a. no. 429 of 1999 under order 1 rule 10 c.p.c., with a prayer to implead the petitioners 3 to 8 herein as legal representatives of the deceased-1st petitioner. the i.a. was dismissed by the trial court on 04-01-2002. aggrieved thereby, the respondents filed c.r.p. no. 5196 of 2003 before this court. the revision was dismissed on 08-03-2006.3. after the dismissal of the c.r.p., the respondents filed three applications before the trial court, viz., i.a. no. 358 of 2006, for setting aside the abatement caused on account of the death of the1st petitioner; i.a. no. 356 of 2006 to condone the delay in preferring the application to set aside the abatement, and i.a. no. 357 of 2006 with a prayer to bring the legal representatives of the 1st petitioner on record.4. through its order dated 28-08-2007, the trial court allowed the i.a. no. 356 of 2006 and condoned the delay of 9 years 9 months and 29 days. however, it dismissed the other two applications through separate orders dated 28-08-2007. while the petitioners feel aggrieved by the order in i.a. no. 356 of 2006, the respondents' grievance is about the dismissal of the applications, for setting aside the abatement, and to bring the legal representatives on record. c.r.p. nos. 4193, 5185 & 5186 of 2007 are filed against the orders in i.a. nos. 356, 357 and 358 of 2006, respectively.5. sri t. raja sekhar rao, learned counsel for the petitioners submits that the 1st petitioner in the suit died much before the suit was filed, and in that view of the matter, the question of bringing the legal representatives did not arise. he contends that the steps taken by the respondents to implead the petitioners herein did not fructify, with the dismissal of the i.a. no. 429 of 1999 and c.r.p. no. 5196 of 2003, and no plea was sought, either before the trial court or this court, to file an application for setting aside the abatement, etc. the learned counsel further submits that the delay of 9 years 9 months 29 days is so enormous, that even with the best of explanations, it cannot be condoned. he tries to justify the dismissal of the other two applications.6. sri k.s. gopala krishnan, learned counsel for the respondents, on the other hand, submits that his clients were pursuing the remedies to bring the petitioners on record, soon after they came to know about the death of the 1st petitioner. he contends that the present set of applications were filed soon after this court dismissed the c.r.p. no. 5196 of 2003, and the trial court had assigned cogent reasons for condonation of delay. learned counsel submits that once the delay in presentation of the application, for setting aside the abatement; is condoned, ordering of the other two consequential applications is almost a matter of course. he places reliance upon certain judgments of the supreme court.7. whenever death of a party to a suit or appeal leads to abatement, and it is noticed at a belated stage, a set of three applications is filed. it comprises of an application to condone the delay in presentation of the application to set aside the abatement; for setting aside the abatement itself, and to bring the legal representatives of the deceased party on record. almost invariably, a common order is passed in the set of such applications. the reason is that, the principal consideration would be about condonation of delay. once the delay is condoned, ordering of other applications is almost a matter of course. in the instant case, the trial court condoned the delay, but has chosen to dismiss the other applications. to this extent, it presents an extraordinary situation.8. the parameters to be applied, while dealing with the applications under section 5 of the limitation act are not uniform. when the delay involved is, in the matter of pursuing the remedies, the scrutiny would be, a bit close, to see whether there was diligence on the part of the concerned individual, and whether he was prevented by circumstances beyond his control. the approach in condonation of delay in presenting the applications to set aside the abatement caused during the death of the parties, is some-what liberal. in such cases, the scrutiny would be not, as to the length of delay, but about the causes pleaded.9. in perumon bhagavathy devaswom v. bhargavi amma 2008 (6) scj 663 : 2008 indlaw sc 2067 the hon'ble supreme court had discussed the law, in this regard, extensively, and guidelines were laid down, to be followed in the matters of this nature. three factors were recognized as important for this purpose: the first is whether the proceedings are pending before the court, where dates of hearing are fixed periodically, so that the party and his counsel have an opportunity to verify the developments in it. a distinction was drawn-out, between the high courts, on the one hand, and the subordinate courts, on the other hand. it was observed that, if the abatement takes place in an appeal, or other proceedings, pending in the high court, there would not be any immediate occasion for the concerned party to notice the same, since the posting of the appeals in the high courts does not take place periodically. in contrast, this situation is prevailing in the subordinate courts, where the dates are given, from time to time.10. the second factor was, as to whether the counsel for the deceased party had put the counsel for the other side on notice, about the death of his client. this is traceable to an obligation on the part of such counsel, under rule 10-a of order 22 c.p.c., and it arises in cases where, the death is one of the defendants or respondents. the necessity to invoke rule 10-a of order 22 c.p.c. does not arise, whether the death is of the plaintiff, and not the appellant.11. the third factor is, as to the verification of the facts viz., whether there exists any material, to contradict the claim of the party, who initiated the steps, that he is unaware of the death of the other party. it was held that, in the absence of material, the courts would accept the claim as to the ignorance of the death. the observations made by the hon'ble supreme court in other cases such as, k rudrappa v. shivappa 2004 indlaw sc 694 : 2004 (6) alt 19.2 (dn sc); m.k. prasad v. p. arumugam 2001 indlaw sc 13, and ramnath sao v. gobardhan sao : (2002) 3 scc 195 : 2002 (2) alt 14.3 (dn sc) are almost on the same lines.12. if we apply the ratio, laid down by the hon'ble supreme court in the cases referred to above; to the facts of the present case, it emerges that it was a suit, at its threshold, and not an appeal pending in the high court. the death of the 1st petitioner in the suit was mentioned on the summons sent to him. in a way, the second and third factors tend to be discussed together. it was specifically pleaded by the petitioners that the 1st petitioner died, even before the suit was filed. though the respondents feigned ignorance about the death of the 1st petitioner, the petitioners specifically pleaded that the 1st petitioner is closely related to the respondents. neither the information about the death was communicated to them, nor was published in the local newspapers. in addition to this, in another set of proceedings, in which the respondents are parties, which ensued much before the filing of the present suit, the factum of the death of jagga rao was mentioned to them. there is no specific denial of this. the occasion for intimation, as required under rule 10-a of order 22 c.p.c. did not arise, since, the death occurred much before the suit was filed, and at any rate, the deceased party was not represented by a counsel.13. assuming that certain amount of latitude was shown towards the respondents for condonation of delay, almost an impossible situation emerges, in view of the fact that the 1st petitioner in the suit died, much before it was filed. for all practical purposes, the suit against him was non est. it is no doubt true that the respondents initiated steps under order 1 rule 10 c.p.c., to implead the petitioners. that however did not fructify. to a large extent, the respondents are responsible for it. the reason is that, instead of taking steps to implead the concerned parties, they have branded the proposed parties as legal representatives of the deceased-1st petitioner, on the one hand, and filed an application under order 1 rule 10 c.p.c., on the other hand. on a purely technical ground, the i.a. no. 429 of 1999 was dismissed.14. the subsequent proceedings initiated under order 22 c.p.c. are equally untenable, because the party whose legal representatives are sought to be brought on record, died, much before the suit was filed. therefore, whether the application for condonation of delay is viewed in isolation, or all the applications, are treated as a lot; they become untenable in law.15. inasmuch as the relief claimed by the respondents is for declaration of title and recovery of possession, they can effort to file fresh suit, duly impleading the persons, against whom they intended to claim the relief, in case there is no legal impediment.16. hence, the c.r.p. no. 4193 of 2007 is allowed, and c.r.p. nos. 5185 and 5186 of 2007 are dismissed. it is made clear that the applications filed by the respondents shall not preclude them from pursuing the remedies, in accordance with law.17. there shall be no order as to costs.

Judgment:
ORDER

L. Narasimha Reddy, J.

1. These three revisions arise out of the steps taken in O.S. No. 48 of 1997 in the Court of Principal Senior Civil Judge, Srikakulam. For the sake of convenience, the parties are referred to, as arrayed in C.R.P. No. 4193 of 2007.

2. Respondents 1 to 3 (for short 'the respondents) filed the suit for the relief of declaration of title and recovery of possession of the suit schedule property against the petitioners 1 and 2, and respondents 4 to 13. On the summons sent to the deceased-1st petitioner, i.e. D. Jagga Rao, it was endorsed that he died. Therefore, the respondents filed I.A. No. 429 of 1999 under Order 1 Rule 10 C.P.C., with a prayer to implead the petitioners 3 to 8 herein as legal representatives of the deceased-1st petitioner. The I.A. was dismissed by the trial Court on 04-01-2002. Aggrieved thereby, the respondents filed C.R.P. No. 5196 of 2003 before this Court. The revision was dismissed on 08-03-2006.

3. After the dismissal of the C.R.P., the respondents filed three applications before the trial Court, viz., I.A. No. 358 of 2006, for setting aside the abatement caused on account of the death of the

1st petitioner; I.A. No. 356 of 2006 to condone the delay in preferring the application to set aside the abatement, and I.A. No. 357 of 2006 with a prayer to bring the legal representatives of the 1st petitioner on record.

4. Through its order dated 28-08-2007, the trial Court allowed the I.A. No. 356 of 2006 and condoned the delay of 9 years 9 months and 29 days. However, it dismissed the other two applications through separate orders dated 28-08-2007. While the petitioners feel aggrieved by the order in I.A. No. 356 of 2006, the respondents' grievance is about the dismissal of the applications, for setting aside the abatement, and to bring the legal representatives on record. C.R.P. Nos. 4193, 5185 & 5186 of 2007 are filed against the orders in I.A. Nos. 356, 357 and 358 of 2006, respectively.

5. Sri T. Raja Sekhar Rao, learned Counsel for the petitioners submits that the 1st petitioner in the suit died much before the suit was filed, and in that view of the matter, the question of bringing the legal representatives did not arise. He contends that the steps taken by the respondents to implead the petitioners herein did not fructify, with the dismissal of the I.A. No. 429 of 1999 and C.R.P. No. 5196 of 2003, and no plea was sought, either before the trial Court or this Court, to file an application for setting aside the abatement, etc. The learned Counsel further submits that the delay of 9 years 9 months 29 days is so enormous, that even with the best of explanations, it cannot be condoned. He tries to justify the dismissal of the other two applications.

6. Sri K.S. Gopala Krishnan, learned Counsel for the respondents, on the other hand, submits that his clients were pursuing the remedies to bring the petitioners on record, soon after they came to know about the death of the 1st petitioner. He contends that the present set of applications were filed soon after this Court dismissed the C.R.P. No. 5196 of 2003, and the trial Court had assigned cogent reasons for condonation of delay. Learned Counsel submits that once the delay in presentation of the application, for setting aside the abatement; is condoned, ordering of the other two consequential applications is almost a matter of course. He places reliance upon certain judgments of the Supreme Court.

7. Whenever death of a party to a suit or appeal leads to abatement, and it is noticed at a belated stage, a set of three applications is filed. It comprises of an application to condone the delay in presentation of the application to set aside the abatement; for setting aside the abatement itself, and to bring the legal representatives of the deceased party on record. Almost invariably, a common order is passed in the set of such applications. The reason is that, the principal consideration would be about condonation of delay. Once the delay is condoned, ordering of other applications is almost a matter of course. In the instant case, the trial Court condoned the delay, but has chosen to dismiss the other applications. To this extent, it presents an extraordinary situation.

8. The parameters to be applied, while dealing with the applications under Section 5 of the Limitation Act are not uniform. When the delay involved is, in the matter of pursuing the remedies, the scrutiny would be, a bit close, to see whether there was diligence on the part of the concerned individual, and whether he was prevented by circumstances beyond his control. The approach in condonation of delay in presenting the applications to set aside the abatement caused during the death of the parties, is some-what liberal. In such cases, the scrutiny would be not, as to the length of delay, but about the causes pleaded.

9. In Perumon Bhagavathy Devaswom v. Bhargavi Amma 2008 (6) SCJ 663 : 2008 INDLAW SC 2067 the Hon'ble Supreme Court had discussed the law, in this regard, extensively, and guidelines were laid down, to be followed in the matters of this nature. Three factors were recognized as important for this purpose: The first is whether the proceedings are pending before the Court, where dates of hearing are fixed periodically, so that the party and his counsel have an opportunity to verify the developments in it. A distinction was drawn-out, between the High Courts, on the one hand, and the Subordinate Courts, on the other hand. It was observed that, if the abatement takes place in an appeal, or other proceedings, pending in the High Court, there would not be any immediate occasion for the concerned party to notice the same, since the posting of the appeals in the High Courts does not take place periodically. In contrast, this situation is prevailing in the Subordinate Courts, where the dates are given, from time to time.

10. The second factor was, as to whether the counsel for the deceased party had put the counsel for the other side on notice, about the death of his client. This is traceable to an obligation on the part of such counsel, under Rule 10-A of Order 22 C.P.C., and it arises in cases where, the death is one of the defendants or respondents. The necessity to invoke Rule 10-A of Order 22 C.P.C. does not arise, whether the death is of the plaintiff, and not the appellant.

11. The third factor is, as to the verification of the facts viz., whether there exists any material, to contradict the claim of the party, who initiated the steps, that he is unaware of the death of the other party. It was held that, in the absence of material, the Courts would accept the claim as to the ignorance of the death. The observations made by the Hon'ble Supreme Court in other cases such as, K Rudrappa v. Shivappa 2004 INDLAW SC 694 : 2004 (6) ALT 19.2 (DN SC); M.K. Prasad v. P. Arumugam 2001 INDLAW SC 13, and Ramnath Sao v. Gobardhan Sao : (2002) 3 SCC 195 : 2002 (2) ALT 14.3 (DN SC) are almost on the same lines.

12. If we apply the ratio, laid down by the Hon'ble Supreme Court in the cases referred to above; to the facts of the present case, it emerges that it was a suit, at its threshold, and not an appeal pending in the High Court. The death of the 1st petitioner in the suit was mentioned on the summons sent to him. In a way, the second and third factors tend to be discussed together. It was specifically pleaded by the petitioners that the 1st petitioner died, even before the suit was filed. Though the respondents feigned ignorance about the death of the 1st petitioner, the petitioners specifically pleaded that the 1st petitioner is closely related to the respondents. Neither the information about the death was communicated to them, nor was published in the local newspapers. In addition to this, in another set of proceedings, in which the respondents are parties, which ensued much before the filing of the present suit, the factum of the death of Jagga Rao was mentioned to them. There is no specific denial of this. The occasion for intimation, as required under Rule 10-A of Order 22 C.P.C. did not arise, since, the death occurred much before the suit was filed, and at any rate, the deceased party was not represented by a counsel.

13. Assuming that certain amount of latitude was shown towards the respondents for condonation of delay, almost an impossible situation emerges, in view of the fact that the 1st petitioner in the suit died, much before it was filed. For all practical purposes, the suit against him was non est. It is no doubt true that the respondents initiated steps under Order 1 Rule 10 C.P.C., to implead the petitioners. That however did not fructify. To a large extent, the respondents are responsible for it. The reason is that, instead of taking steps to implead the concerned parties, they have branded the proposed parties as legal representatives of the deceased-1st petitioner, on the one hand, and filed an application under Order 1 Rule 10 C.P.C., on the other hand. On a purely technical ground, the I.A. No. 429 of 1999 was dismissed.

14. The subsequent proceedings initiated under Order 22 C.P.C. are equally untenable, because the party whose legal representatives are sought to be brought on record, died, much before the suit was filed. Therefore, whether the application for condonation of delay is viewed in isolation, or all the applications, are treated as a lot; they become untenable in law.

15. Inasmuch as the relief claimed by the respondents is for declaration of title and recovery of possession, they can effort to file fresh suit, duly impleading the persons, against whom they intended to claim the relief, in case there is no legal impediment.

16. Hence, the C.R.P. No. 4193 of 2007 is allowed, and C.R.P. Nos. 5185 and 5186 of 2007 are dismissed. It is made clear that the applications filed by the respondents shall not preclude them from pursuing the remedies, in accordance with law.

17. There shall be no order as to costs.