In a land acquisition matter, the Reference Court enhanced land value from Rs. 1 lac to Rs. 17 lacs vide Award dated 12.11.1991. State filed appeal without noticing that the sole respondent in the Award had died before filing the said appeal… Decide the matter.

Question: In a land acquisition matter, the Reference Court enhanced land value from Rs. 1 lac to Rs. 17 lacs vide Award dated 12.11.1991.

State filed appeal without noticing that the sole respondent in the Award had died before filing the said appeal. On 22.05.1993 an application was filed quoting Order 1, Rule 10 C.P.C. for joining names of legal representatives of the deceased respondent alleging that Govt. came to now of the death of the sole respondent only when notice of appeal was returned unserved stating that he was no more.

The application is contested by the proposed L.Rs. on the ground that Order XXII, Rule 4 is the relevant provision to be invoked and the application for impleadment of L. Rs. Should have been filed within 90 days after death as per Art. 120 of the Limitation Act and one officer of Govt. knew about the factum of death and, therefore, the appeal abates.

The contention of Govt. is that Order 1, Rule 10 is relevant and there is no specified period of limitation for making such an application and if at all any application is necessary, the same could be filed within 3 years under Art. 137 of The Limitation Act and in this case, the application was filed much ahead of that time.

Deal with the points raised by the parties and decide the matter. [D.J.S. 2000]

Find the answer to the mains question only on Legal Bites. [In a land acquisition matter, the Reference Court enhanced land value from Rs. 1 lac to Rs. 17 lacs vide Award dated 12.11.1991. State filed appeal without noticing that the sole respondent in the Award had died before filing the said appeal… Decide the matter.]

Answer

Abatement implies a suspension or termination of proceeding for want of proper parties. Provisions of Order 22 of Code of Civil Procedure deals with the creation, assignment, or devolution of interest during the pendency of suit as well as an appeal but not execution proceedings due to death, marriage, or insolvency of parties Rule-1 of Order 22 C.P.C. provides that the death of plaintiff or defendant shall not cause the suit to abate if the right to sue survives.

Rules 1 to 6 of Order 22 provides as to consequences, in case of death of a party to suit Rule 2 says where there are more plaintiffs or defendants than one and any of them dies and where the right to sue survives to the surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect, to be made on record shall proceed at the instance of surviving plaintiff(s) or against surviving defendant(s) as the case may be.

Rule 3 says where one of two or more plaintiffs dies and the right to sue does not survive to survive plaintiff or plaintiffs alone or a sole plaintiff or sole surviving plaintiff dies and right to sue survives, the Court on an application made in that behalf shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

Where within the time limited by law (i.e. within 90 days of death), no application is made, the suit shall abate so far as the deceased plaintiff is concerned. Rule 4 then lays down that where one of two or more defendants dies and right to sue does not survive against the surviving defendant or defendants alone, or where the sole defendant or sole surviving defendant dies and right to sue survives, the Court on an application made in that behalf shall cause the legal representatives of the deceased defendant to be made a party and proceed with the suit.

However where within the time limited by law (i.e. 90 days of death) no application is made, the suit shall abate against the deceased defendant.

Rule 4(4) of Order 22 however provides that Court, whenever it thinks fit exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who had filed it, has failed to appear and contest the suit at the hearing and the judgment may, in such case, be pronounced against said defendant notwithstanding the death of such defendant and shall have same effect and force as if it has been pronounced before his death Rule 4(5) says where the plaintiff was ignorant of death of defendant and could not for that reason make an application for substitution of the legal representative of such defendant.

Within the prescribed period and the suit is abated, the plaintiff may make an application for setting aside such abatement and in considering the said application the Court shall have due regard to the fact of such ignorance of the plaintiff.

In view of provisions of Rule 11, the above said provisions are applicable to appeals. In the facts of the case in hand question for consideration is whether provisions of Order 1 Rule 10 or Order 22 Rule 4 of C.P.C. will apply. In similar facts in Supreme Court in State of Kerala v. Sridevi, JT [2000 (4) SC 391] their Lordships observed:

There was no need to invoke any of the Rule in Order XXII as there was no question of abatement since the death of the sole respondent had taken place only after the judgment was delivered by the Sub-Court. The error, which has crept in, is that the appeal was filed against a person who was not then alive. In such a case Order 1 Rule 10 has to be invoked.

There is no specified period of limitation for making an application in the aforesaid Rule and hence, if at all any application is necessary the dame could be filed within three years under Article 137 of the Limitation Act. In the present case, the application was filed much ahead of time. It was filed on 22.05.1993” In view of the above discussion, the objection raised by the legal representatives is not tenable, and the appeal does not abate.

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