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Food Corporation of India, Tadepalligudem Vs. Sri Ramachandra Boiled and Raw Rice Mill and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 781 of 1983, 1497 and 2231 of 1982
Judge
Reported inAIR1985AP23
ActsLimitation Act, 1963 - Sections 5 - Schedule - Article 120
AppellantFood Corporation of India, Tadepalligudem
RespondentSri Ramachandra Boiled and Raw Rice Mill and ors.
Appellant AdvocateN.V. Suryanarayana Murty, Standing Counsel
Respondent AdvocateG.R. Subbarayan and ;G. Krishna Murthy, Advs.
Excerpt:
.....approach but be made (sic) the rule of procedure as hand-maid to redress the injury and mitigate failure of justice of available. i am satisfied on the facts in this case that the petitioner has established sufficient cause for not bringing the..........made enquiries and by a report dt. 15.9.76 it was intimated that the proposed respondents are the legal representatives of the proprietor of the defendant-firm. on 16-9-76 an application i.e., i.a. 959/76 has been filed to bring the legal representatives on the premise that the petition was filed within 90 days from the date of the knowledge. in the counter-affidavit it is contended that the suit got abated in view of the fact that the legal representatives of the proprietor were not brought on record within a period of 90 days as contemplated under art. 120 of the schedule of the limitation act, 1963. then an application being i.a. 339/77 was filed seeking to condone the delay to set aside the abatement. i.a.no.340/77 was filed to set aside the abatement. all these petitions have been.....
Judgment:
ORDER

1. The Petitioner is the Food Corporation of India. They laid a suit for recovery of certain amounts against the sole defendant, a firm represented by the Proprietor. While the suit is pending, on 23-6-76, the counsel for the defendant filed a memorandum in the lower Court intimating that the Proprietor of the defendant-firm died on 24-3-1976. Then the counsel intimated this fact to the petitioner, the petitioner made enquiries and by a report dt. 15.9.76 it was intimated that the proposed respondents are the legal representatives of the proprietor of the defendant-firm. On 16-9-76 an application i.e., I.A. 959/76 has been filed to bring the legal representatives on the premise that the petition was filed within 90 days from the date of the knowledge. In the counter-affidavit it is contended that the suit got abated in view of the fact that the legal representatives of the Proprietor were not brought on record within a period of 90 days as contemplated under Art. 120 of the Schedule of the Limitation Act, 1963. Then an application being I.A. 339/77 was filed seeking to condone the delay to set aside the abatement. I.A.No.340/77 was filed to set aside the abatement. All these petitions have been dismissed by the lower Court. Against the order in I.A.No.959/76, C.R.P. No.2231/82 has been filed. Against the order in I.A.No.339/77, C.R.P. No. 781/83 has been filed and against the order in I.A.No.340/77, C.R.P.No.1497/82 has been filed.

2. Sri N.V. Suryanarayana Murthy, learned counsel for the petitioner contends that the petitioner being a statutory Corporation is not aware of the date of the death of the Proprietor of the defendant-firm and for the first time it became aware of his death only on23-6-76 viz., the last date of the expiry of 90 days through a memorandum filed by the learned counsel for the defendant and immediately thereafter proper steps have been taken. In the memorandum, no details of the legal representatives of the Proprietor of the defendant-firm have been given. As a consequence the petitioner has to make enquiries regarding the defendant. In this regard, diligent and prompt steps have been taken and the petitioner being a statutory Corporation, it has got to make enquiries through its subordinates, and a report was submitted by its subordinates on 15-9-76 disclosing the proposed respondents to be entitled to represent the estate of the Proprietor of the Sit defendant-firm. Accordingly, on the next day viz., on 16-9-76 an application to bring the legal representatives of the proprietor of the firm has been filed. Thus there is no delay caused on their part and the delay, if any, occasioned has been sufficiently explained. The lower Court has taken an unreasonably rigid view of the matter and thereby the lower Court committed material irregularity in exercise of its jurisdiction.

3. Sri Subbarayan, learned counsel for the respondent, on the other hand, strenuously contended and asserted that the lower Court being a final Court on fact has considered the material placed before it and gave a finding of fact that sufficient cause has not been explained and therefore, the petition to condone the delay has been dismissed, and as a consequence, the other two petitions also have been dismissed. Thereby the lower Court did not commit any material irregularity in exercise of its jurisdiction. I am unable to appreciate the contention of the learned counsel for the respondent. It is an undisputed fact that the petitioner is a statutory body and that it has got to act through its subordinates. It is not expected to know every day of the good health of the defendant all through. For the first time it became aware of the death of the Proprietor of the first defendant on 23-6-76 when a memorandum was filed by the defendant's counsel in the Court. O.22, R.1 C.P.C. postulates that the death of the plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Rule 4 adumbrates that where a sole defendant dies and the right to sue survives, the Court on an application made in this behalf, shall cause the legal representatives of the deceased defendnat to be made a party and shall proceed with the suit. Art. 120 of the Limitation Act prescribes 90 days to bring the legal representatives on record. On expiry thereof the suit gets abated and no fresh suit on the same cause of action be laid. With a view to facilitate trial on merits and to avoid abatement, amendment under R.10A was brought out in the Code. R.10A of Order 22 C.P.C. reads thus:

'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 the 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.'

Under the amended Rule, now a duty has been cast on the learned counsel for the defendant to give an intimation. That means the intimation shall have to be given as soon as he becomes aware of the death of his party. This is not a ritualistic empty formality but brought in with result orientation backed thereby and expeditious disposal of interlocutory applications facilitating speedy disposal of original cause. When the learned counsel for the defendant is aware of the death of the defendant, then it is expected of him to facilitate the Court to bring his L.Rs. within the statutory period of limitation, to give intimation of the death of the defendant. When such is the position it is the bounden duty of the counsel to give intimation of the L.Rs. or to make an enquiry from the person that gave the information and furnish the same immediately either to the Court or the counsel for plaintiff. The amendment was brought with an object to subserve the cause of the justice but not to prevent the ends of justice by mere technicalities. On such intimation being given, a further duty has been cast on the Court to give intimation to the plaintiff in the event when the plaintiff is not aware of the death earlier to such date of intimation being given. In a given case where the plaintiff himself is aware of the death, then the intimation by counsel for defendant could not be of much avail, but in cases where the plaintiff may not be in a position to know the date of the death, in such an event the Legislature intended that on such information furnished by the counsel for the defendant, the Court has to give intimation of the death to the party so that the plaintiff could take expeditious steps to bring the L.Rs. on record.

4. The endeavor of the Court would be to kindle the flames of justice burning by rendering substantial justice on fair adjudication and dispassionate consideration of the evidence on merits. In that process the Court has to eschew adaptation of hyper-technical approach but be made (sic) the rule of procedure as hand-maid to redress the injury and mitigate failure of justice of available. In this context it is relevant to refer to the law of their Lordships of the Supreme Court laid down in Union of India v. Ramachandran, : [1964]3SCR467 which reads thus:

'There is no question of construing the expression 'sufficient cause' liberally either because of the party in default is the Government or because the question arises in connection with the impleading of the legal representatives of the deceased respondent. The provisions of the Code are with a view to advance the cause of justice. Of course, the Court, in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time, need not be over strict in expecting such proof of the suggested cause as it would accept for holding certain fact established, both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined while, if the abatement is not set aside, the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance. This however, does not mean that the Court should readily accept whatever the appellant alleges to explain away his default. It has to scrutinize it and would be fully justified in considering the merits of the evidence led to establish the cause for the appellant's default in applying within time for the impleading of the legal representatives of the deceased or for setting aside the abatement.'

Therefore the Court would not adopt unduly rigid or over strict view in construing whether sufficient cause has been established or not. The Court also should not readily accept the submissions made, but has to scrutinize each case on the facts whether sufficient cause has been established or not. In this case, admittedly intimation was given on the last day of the 90th day from the date of death of the deceased defendant. Obviously he wants to avail of full period of limitation prescribed to see that the application is filed beyond 90 days. It should also be noted that the details of legal representatives have not been given. In this case on the above facts, admittedly a report was submitted to the petitioner on 15-9-76 informing the names of the proposed respondent to be the L.Rs. entitled to represent the estate of the deceased proprietor of the first defendant firm. On the next day i.e., on 16-9-76 an application to that effect has been filed. I am satisfied on the facts in this case that the petitioner has established sufficient cause for not bringing the L.Rs. on record within the prescribed period of limitation. The lower Court did not approach the problem from the above perspective and thereby committed material irregularity in exercise of the powers conferred under S. 5 of the Limitation Act. Accordingly, C.R.P.no. 781/83 is allowed and the delay seeking to set aside abatement to bring the legal representatives of deceased defendant on record is condoned. Consequently I.A. No.340/77 is allowed and the abatement is set aside. Hence C.R.P.No.1497/82 is allowed. Accordingly, I.A.No.959/76 and C.R.P.No. 2231/82 are also allowed and the lower Court is directed to bring the proposed respondents as L.Rs. of the deceased proprietor of the defendant and proceed with the trial of the suit according to law, subject to the petitioner paying a sum of Rs.250/- to Sri G. Krishna Murty, learned counsel appearing for the respondent. This amount has to be paid on or before 13th June 1983 and if the amount is not paid, the C.R.Ps. shall stand dismissed. There will be no order as to costs.

5. Order accordingly.


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