Unknown vs The Hon'Ble Ms Justice ...
2023 Latest Caselaw 3221 AP

      THE HON'BLE MS JUSTICE B.S.BHANUMATHI

                     C.R.P. No.86 of 2022
ORDER :

This Civil Revision Petition is filed under Article

227 of Constitution of India against the order dated 09-10-

2020 dismissing I.A.No.25 of 2020 in O.S.No.85 of 2013 on

the file of the Court of XI Additional District Judge, Piler filed

under Order XXIII Rules 1 and 2, Section 151 CPC seeking

permission for withdrawal of the suit with an opportunity to

file fresh suit on future cause of action which may arise in

connection with the suit schedule property.

2. The petitioner filed the suit for declaration of the

possessory title of the plaintiff to the plaint schedule property

i.e., Ac.01-73 cents out to Ac.05-73 cents in survey No.211 of

Dodipalle village, Piler Mandal, Piler Sub District of Chittoor

District and for consequential permanent injunction against

the defendant, his men etc., from interfering with the

peaceful possession and enjoyment of the plaint schedule

property by the plaintiff and also for direction to the

defendant to execute the registered sale deed in favour of the

plaintiff and in case, if the defendant fails to execute the

same, the Court to execute the same and costs.

C.R.P.No.86 of 2022

3. Pending the suit, the sole defendant died on

09.01.2020 (according to the plaintiff), but no steps were

taken to bring in the legal representatives of the deceased

defendant. However, this petition in I.A.No.25 of 2020 was

filed on 09.10.2020. It is pertinent to note that a counter

signed by the counsel for the defendant was filed stating that

the defendant died on 16.01.2020 pending the suit and it is

incorrect to state that the defendant died on 09.01.2020. It

is also further stated that the deceased left behind him, his

2nd wife Smt.P.Nagamma and the plaintiff is well aware of the

same but suppressed it. It is further stated that the deceased

who had exclusive right, title and possession over the suit

schedule property executed his last will dated 17.04.2014 in

a sound state of mind in favour of Smt.P.Nagamma and got it

registered in the office of Sub Registrar, Piler vide document

No.22 of 2014, Book III and its photostat copy was also

included to the counter. Therefore, it is contended in the

counter that Smt P.Nagamma is the sole legal heir of the

defendant and continuing in possession and enjoyment of the

same as absolute owner. Thus, the petition was resisted

saying that the plaintiff cannot file this petition to withdraw

the suit, but ought to have added the legal heir and the Court

C.R.P.No.86 of 2022

cannot permit for such withdrawal of the suit with a

permission to file a fresh suit against the dead person.

4. As per Order XXII Rule 10-A CPC, a duty is cast

on the pleader to communicate the Court the death of a

party. Since the contract between a party and a counsel

would come to an end on the death of the party, there is no

authority to represent a client and therefore, it is only by

virtue of Order XXII Rule 10-A of CPC, a pleader has

authority to communicate the same to the Court. Order XXII

Rule 10-A CPC reads as follows:

"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

there upon 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. In view of the legal proposition, the authority of

the counsel appearing for the defendant is limited only to

communicate death of the party to the Court and nothing

more. However, he filed a counter resisting the petition and

the same was received by the Court and mentioned the same

C.R.P.No.86 of 2022

in the order, however the contents have not been considered

for the purpose of answering the point involved in the

petition. Independently of the contents in the counter, the

order has been passed by examining the relevant provisions

under Order XXIII Rules 1 and 2 CPC mainly Rule 1.

6. Though the petitioner, by virtue of the counter,

came to know that there is a registered will left by the

deceased, has not taken any steps to bring the legatee as a

legal representative, nor did the legatee come forward to file

an application to implead herself in the suit. The petitioner

stuck to his stand that he did not know who are legal

representatives left by the deceased. The suit got abated by

operation of law on the expiry of the period of limitation to

bring legal representatives on record. However, on

09.10.2020, when I.A.No.25 of 2020 was disposed, the Court

recorded that the suit got abated. Thus, the suit did not

survive any more. Since I.A.No.25 of 2020 was also

dismissed, the petitioner is remediless insofar as the prayer

sought in the petition.

7. Having aggrieved by the impugned order, this

revision petition is filed stating that the trial Court erred in

dismissing the petition, since the petitioner having no other

option filed the application filed under Order XXIII Rule 1 (1)

C.R.P.No.86 of 2022

CPC to withdraw the suit reserving his right to file fresh suit,

if any cause of action arise in future, under these

circumstances stated in the petition.

8. While passing the order, the trial Court observed

that since the petitioner admitted the death of the sole

defendant in Janauary, 2020, so far, neither any legal

representative nor the Government under the doctrine of

escheat contemplated under Section 29 of Hindu Succession

Act, is made a party and thus, literally there is no respondent

in the application and consequently the application shall be

negated at the threshold.

9. As rightly observed by the trial Court, in the

absence of respondent, no order can be invited against none,

more particularly when the relief sought by the petitioner can

be opposed by the defendant. Further the trial Court

observed that the petitioner has not taken a specific stand

that the suit would fail by reason of some normal defect, or

that there are sufficient grounds for allowing him to institute

fresh suit in respect of the full or part of the subject matter in

respect of cause of action so far accrued, but contingent. In

this regard, the contention of the learned counsel for the

petitioner is that since no defendant is available, it is

sufficient ground to allow him to institute a fresh suit. Since

C.R.P.No.86 of 2022

in the present revision also no living respondent is made a

party and on the other hand the respondent is shown as if

alive and by virtue of the same and this Court previously

directed issue of notice to the respondent, as can be seen

from the docket orders. As there is no living respondent, it is

not possible to pass any order in favour of the petitioner

against any person. Therefore, the legal status of the petition

herein and before the trial Court remain the same.

10. In fact, Order XXII Rule 4-A CPC prescribes a

procedure where there is no legal representative. It says if, in

any suit, it shall appear to the Court that any party who has

died during the pendency of the suit has no legal

representative, the Court may, on any application of any

party to the suit, proceed in the absence of a person

representing the estate of the deceased person, or may by

order appoint the Administrator-General, or an officer of the

Court or such other person as it thinks fit to represent the

estate of the deceased person for the purpose of the suit; and

any judgment or order subsequently given or made in the suit

shall bind the estate of the deceased person to the same

extent as he would have been bound if a personal

representative of the deceased person had been a party to the

suit. The said rule contemplates the procedure to be followed

C.R.P.No.86 of 2022

before making any such order. It requires the Court to issue

notice of the application for the order to be given to such (if

any) of the persons having an interest in the estate of the

deceased person as it thinks fit and shall ascertain that the

person proposed to be appointed to represent the estate of

the deceased person is willing to be so appointed and has no

interest adverse to that of the deceased person.

11. The preceding Rule No.4 provides that where the

sole defendant or sole surviving defendant dies and the right

to sue survives, on an application made in that behalf Court

shall cause the legal representative of the deceased defendant

to be made a party and shall proceed with the suit. But

where within the time limited by law, no application is made

under this rule, the suit shall abate as against the deceased

defendant. Order XXII Rule 9 CPC declares that where a suit

abates or is dismissed under this Order, no fresh suit shall

be brought on the same cause of action subject to other

exceptions provided therein for bringing the legal

representatives on record by getting the order of abatement or

dismissal set aside on application filed within time or by

condoning the delay by applying the provisions of Indian

Limitation Act.

C.R.P.No.86 of 2022

12. In the present case, since the legal

representative(s) of the deceased defendant has/have not

been brought on record within the time limited by law, no

express order of abatement of the suit is required, since by

operation of law, the suit gets abated. May be, by virtue of

the pendency of I.A.No.25 of 2020, without recording the

abatement of the suit, the proceedings were live and it was

only when I.A.No.25 of 2020 was disposed of, the trial Court

recorded the abatement of the suit.

13. Since Order XXII Rule 4-A CPC permits a Court,

on application of any party to the suit, to proceed with the

suit in the absence of person representing the estate of the

deceased person or appoint an Administrator General or an

officer of the Court or such other person as it thinks fit to

represent the estate of the deceased person for the purpose of

the suit and can pass judgment binding on the estate of the

deceased person, the petitioner could have taken appropriate

step, but no such remedy has been availed by the

petitioner/plaintiff.

14. For the reasons probably known to him, he has

not even chosen to make Smt P.Nagamma also as a party

inspite of having knowledge of the registered will in the name

of such person.

C.R.P.No.86 of 2022

15. Here also since the petitioner has not made any

living person as respondent, no order on merits can be

passed. The petitioner has to work out his remedies before

the trial Court as per law.

16. With these observations, this Civil Revision

Petition is disposed of.

There shall be no order as to costs.

Pending miscellaneous petitions, if any, shall stand closed.

___________________________ JUSTICE B.S.BHANUMATHI

Date : 26-06-2023 SAB

Note : 1. The Registry is directed to incorporate that the respondent is 'dead' in the cause title of petition as well as the order.

2. L.R. Copy to be reported.

(B/o) SAB

C.R.P.No.86 of 2022

THE HON'BLE MS JUSTICE B.S.BHANUMATHI

C.R.P. No.86 of 2022

Dt.26.06.2023

SAB

C.R.P.No.86 of 2022