Syed Ali Vs. Syed Abdul Rahman and ors. - Court Judgment

Excerpt:
- - thus, no question of rejecting the written statement would arise, as well as such a document cannot be recognised as documentary evidence placed before the court within the meaning of the provisions of c. however such document, if law permits, may be useful to prove any other fact like statement of the dead person made during his life time.orderb.k. somasekhara, j.1. the correctness and legality of the order of the learned district munsif, armoor in o.s.no. 97/89 on i.a.no. 324/95 dated 22-7-1996 is challenged. the petitioner is the plaintiff. he filed an application under section 151 of c.p.c. to reject the written statement filed on behalf of defendant no. 2 by his advocate after the death of the party. notice of the petition has been served on the contesting respondents and there is not representation. having due regard to the simple questions involved in this petition, the main matter has been heard at the stage of admission for disposal according to law. the uncontroverted facts leading to this revision petition are that defendant no. 2, viz., syed mohammed died on 16-3-1990 during pendency of the suit and his written statement was filed into court on 20-3-1990 by his advocate. it appears that he had sworn to the affidavit and verified the written statement on 12-3-1990. therefore the contention that by the time the written statement was filed, the advocate had ceased the authority to act and plead for defendant no. 2, and therefore the written statement so filed on behalf of defendant no. 2 shall be rejected. after hearing both sides, the learned district munsif dismissed the application.2. mr. s. niranjan reddy, the learned advocate for the petitioner has pointed out that by virtue of order 3, rule 4 sub-clauses (1) and (2) of c.p.c. a pleader who is authorised by a person to act and plead shall cease to have the authority as such appointment which has to be filed into court under sub-clause (1) shall be deemed to be in force only until it is determined or until the client or pleader dies or until all proceedings in the suit are ended so far as his clients are concerned in question. he also points out that by virtue of order 22, rule 10-a of cpc the relationship between the pleader and the deceased client shall be deemed to subsist only for the purpose of giving notice by such advocate to the other party and not for any purpose. in this regard he has relied upon a pronouncement of the supreme court in gangadhar v. raj kumar, : air1983sc1202 and of bombay high court in bai pani v. madhabhai galabhai patel, : air1953bom356 . such a contention of the learned advocate has all the force in view of the considered legal position emanating from such provisions in addition to the other provisions of c.p.c.3. in this case, admittedly defendant no. 2 was dead by the time the written statement was filed on 20-3-1990. it was said to have been signed and verified on 12-3-1990 although defendant no. 2 died on 16-3-1990. order 8, rule 1 of c.p.c. contemplates that the defendant shall at or before the first hearing or within such time as the court may permit, present a written statement of his defence, thereby meaning that normally speaking the law contemplates that the party himself has to present a written statement of his defence at or before the first hearing or within such time as the court may permit. but in view of order 3 rule 1 of c.p.c. such an act of the defendant in regard to presenting the written statement may be done by a recognized agent or by pleader. the right of the plaintiff shall not go away if the right to sue survives as contemplated under order 22 rule 4 of c.p.c. for that purpose, an application has to be made under rules 3 and 4 of order 22 to bring the legal representatives of the plaintiff or the defendant on record as the case may be, within the period of limitation prescribed therein or else it will abate having effect of dismissal of the suit or the proceedings, as the case may be by virtue of rule 9 of order 22 of c.p.c. therefore the interregnum between the date of the proceeding or the date of abatement or the date of bringing the legal representatives on record creates a vaccum in regard to the cause of action to survive depending upon the conduct of the parties. till such an event occurs there should be nothing to be done by an advocate appearing for a party who dies pending proceedings. order 3, rule 4, sub-clause (1) of c.p.c. prevents a pleader from acting for any person in any court, unless he has been appointed for the purpose by such a person by a document in writing signed by such person or his recognised agent or by some other person duly authorized by or under a power of attorney to make such appointment. in other words a pleader acts and pleads only under the authority of appointment by means of a document in writing as prescribed in the provision. such an appointment is deemed to be in force until determined. the determination of such an appointment as contemplated in sub-clause (2) of order 22 rule 4 is (1) with the leave of the court, (2) by a writing signed by the client or (3) pleader dies, or (4) until all proceedings in the suit are ended so far as regards the client. in other words the appointment so made under clause (1) shall continue only under four circumstances stated above and not beyond that, among which ' the death of the client or pleader is one. logically and legally the appointment of a pleader under sub-clause (1) ceases to exist the moment the client dies and obviously on the death of the pleader himself. it is stated that the power of attorney and / or vakalat will be taken away with him by the pleader or the client as the case may be on his death. such a legal position has been made in view of the authoritative pronouncement of the supreme court in gangadhar's case (1 cited above). in this context it was pointed out by the supreme court as follows:'..................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.'4. in bai pani v. madhabhai's case (2 cited supra) the question involved is whether the appeal filed by the advocate after the death of the party would be maintainable, and it was held in the negative. therefore the right and duty of the defendant under order 8 rule 1 of c.p.c. comes to an end on his death and further more such a right to be exercised by his authorised agent or advocate also comes to an end on his death. by virtue of order 3 rules 1 and 2 of c.p.c. and also order 3 rule 4 and the relationship between the deceased party and the advocate, the arrangement continues only for the purpose of bringing the legal representatives on record to continue the proceedings for cause of action and for no other purpose. to make it more emphatic the true implications of order 22, rule 10-a 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.'5. the contract between the pleader and the client brought about by virtue of order 3, rule 4 sub clause (1) of c.p.c. shall continue only for the purpose mentioned in rule 10-a and for no other purpose. such an interpretation can be certainly drawn in view of the various provisions stated above in addition to the pronouncement of the supreme court and the high court of bombay.6. in the present case admittedly when the written statement was filed by the advocate on 20-3-1990, defendant no. 2 was already dead. his verifying the written statement on 12-3-1990 had nothing to do with filing or presenting the written statement into court or to the court. if any other interpretation is put up on such provisions, it may mean that the mere verification or signing pleadings will remain with the advocate or anybody on his behalf. no such interpretation can be put up. the learned district munsif has gone into the matter whether the 2nd defendant was alive or not on 12-3-1990 etc. etc. when it was definitely known that he was dead by 20-3-90, when the written statement was filed, in the eye of law, there was no written statement of defendant no. 2 before the court. thus, no question of rejecting the written statement would arise, as well as such a document cannot be recognised as documentary evidence placed before the court within the meaning of the provisions of c.p.c. stated above. that may not be even worth basing upon which the court can act upon the same. however such document, if law permits, may be useful to prove any other fact like statement of the dead person made during his life time.7. the revision petition is allowed. the written statement of defendant no. 2 filed on 20-3-90 shall not be taken as the written statement filed in accordance with order 8 rule 1 cpc. obviously no issue framed on such written statement will survive for trial or recording findings. the learned district munsif shall dispose of the suit in accordance with law ignoring the written statement of defendant no. 2. no costs.

Judgment:
ORDER

B.K. Somasekhara, J.

1. The correctness and legality of the order of the learned District Munsif, Armoor in O.S.No. 97/89 on I.A.No. 324/95 dated 22-7-1996 is challenged. The petitioner is the plaintiff. He filed an application Under Section 151 of C.P.C. to reject the written statement filed on behalf of defendant No. 2 by his advocate after the death of the party. Notice of the petition has been served on the contesting respondents and there is not representation. Having due regard to the simple questions involved in this petition, the main matter has been heard at the stage of admission for disposal according to law. The uncontroverted facts leading to this revision petition are that defendant No. 2, viz., Syed Mohammed died on 16-3-1990 during pendency of the suit and his written statement was filed into Court on 20-3-1990 by his advocate. It appears that he had sworn to the affidavit and verified the written statement on 12-3-1990. Therefore the contention that by the time the written statement was filed, the advocate had ceased the authority to act and plead for defendant No. 2, and therefore the written statement so filed on behalf of defendant No. 2 shall be rejected. After hearing both sides, the learned District Munsif dismissed the application.

2. Mr. S. Niranjan Reddy, the learned advocate for the petitioner has pointed out that by virtue of Order 3, Rule 4 Sub-clauses (1) and (2) of C.P.C. a pleader who is authorised by a person to act and plead shall cease to have the authority as such appointment which has to be filed into Court under Sub-clause (1) shall be deemed to be in force only until it is determined or until the client or pleader dies or until all proceedings in the suit are ended so far as his clients are concerned in question. He also points out that by virtue of Order 22, Rule 10-A of CPC the relationship between the pleader and the deceased client shall be deemed to subsist only for the purpose of giving notice by such advocate to the other party and not for any purpose. In this regard he has relied upon a pronouncement of the Supreme Court in Gangadhar v. Raj Kumar, : AIR1983SC1202 and of Bombay High Court in Bai Pani v. Madhabhai Galabhai Patel, : AIR1953Bom356 . Such a contention of the learned advocate has all the force in view of the considered legal position emanating from such provisions in addition to the other provisions of C.P.C.

3. In this case, admittedly defendant No. 2 was dead by the time the written statement was filed on 20-3-1990. It was said to have been signed and verified on 12-3-1990 although defendant No. 2 died on 16-3-1990. Order 8, Rule 1 of C.P.C. contemplates that the defendant shall at or before the first hearing or within such time as the Court may permit, present a written statement of his defence, thereby meaning that normally speaking the law contemplates that the party himself has to present a written statement of his defence at or before the first hearing or within such time as the Court may permit. But in view of Order 3 Rule 1 of C.P.C. such an act of the defendant in regard to presenting the written statement may be done by a recognized agent or by pleader. The right of the plaintiff shall not go away if the right to sue survives as contemplated under Order 22 Rule 4 of C.P.C. For that purpose, an application has to be made under Rules 3 and 4 of Order 22 to bring the legal representatives of the plaintiff or the defendant on record as the case may be, within the period of limitation prescribed therein or else it will abate having effect of dismissal of the suit or the proceedings, as the case may be by virtue of Rule 9 of Order 22 of C.P.C. Therefore the interregnum between the date of the proceeding or the date of abatement or the date of bringing the legal representatives on record creates a vaccum in regard to the cause of action to survive depending upon the conduct of the parties. Till such an event occurs there should be nothing to be done by an advocate appearing for a party who dies pending proceedings. Order 3, Rule 4, Sub-clause (1) of C.P.C. prevents a pleader from acting for any person in any Court, unless he has been appointed for the purpose by such a person by a document in writing signed by such person or his recognised agent or by some other person duly authorized by or under a power of attorney to make such appointment. In other words a pleader acts and pleads only under the authority of appointment by means of a document in writing as prescribed in the provision. Such an appointment is deemed to be in force until determined. The determination of such an appointment as contemplated in Sub-clause (2) of Order 22 Rule 4 is (1) with the leave of the Court, (2) by a writing signed by the client or (3) pleader dies, or (4) until all proceedings in the suit are ended so far as regards the client. In other words the appointment so made under Clause (1) shall continue only under four circumstances stated above and not beyond that, among which ' the death of the client or pleader is one. Logically and legally the appointment of a pleader under Sub-clause (1) ceases to exist the moment the client dies and obviously on the death of the pleader himself. It is stated that the power of attorney and / or vakalat will be taken away with him by the pleader or the client as the case may be on his death. Such a legal position has been made in view of the authoritative pronouncement of the Supreme Court in Gangadhar's case (1 cited above). In this context it was pointed out by the Supreme Court as follows:

'..................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.'

4. In Bai Pani v. Madhabhai's case (2 cited supra) the question involved is whether the appeal filed by the advocate after the death of the party would be maintainable, and it was held in the negative. Therefore the right and duty of the defendant under Order 8 Rule 1 of C.P.C. comes to an end on his death and further more such a right to be exercised by his authorised agent or advocate also comes to an end on his death. By virtue of Order 3 Rules 1 and 2 of C.P.C. and also Order 3 Rule 4 and the relationship between the deceased party and the advocate, the arrangement continues only for the purpose of bringing the legal representatives on record to continue the proceedings for cause of action and for no other purpose. To make it more emphatic the true implications of Order 22, Rule 10-A 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.'

5. The contract between the pleader and the client brought about by virtue of Order 3, Rule 4 Sub clause (1) of C.P.C. shall continue only for the purpose mentioned in Rule 10-A and for no other purpose. Such an interpretation can be certainly drawn in view of the various provisions stated above in addition to the pronouncement of the Supreme Court and the High Court of Bombay.

6. In the present case admittedly when the written statement was filed by the advocate on 20-3-1990, defendant No. 2 was already dead. His verifying the written statement on 12-3-1990 had nothing to do with filing or presenting the written statement into Court or to the Court. If any other interpretation is put up on such provisions, it may mean that the mere verification or signing pleadings will remain with the advocate or anybody on his behalf. No such interpretation can be put up. The learned District Munsif has gone into the matter whether the 2nd defendant was alive or not on 12-3-1990 etc. etc. When it was definitely known that he was dead by 20-3-90, when the written statement was filed, in the eye of law, there was no written statement of defendant No. 2 before the Court. Thus, no question of rejecting the written statement would arise, as well as such a document cannot be recognised as documentary evidence placed before the Court within the meaning of the provisions of C.P.C. stated above. That may not be even worth basing upon which the Court can act upon the same. However such document, if law permits, may be useful to prove any other fact like statement of the dead person made during his life time.

7. The revision petition is allowed. The written statement of defendant No. 2 filed on 20-3-90 shall not be taken as the written statement filed in accordance with Order 8 Rule 1 CPC. Obviously no issue framed on such written statement will survive for trial or recording findings. The learned District Munsif shall dispose of the suit in accordance with law ignoring the written statement of defendant No. 2. No Costs.