M ANJAIAH Vs. K VENKATESWARLU DIED
LAWS(APH)-1992-2-69
HIGH COURT OF ANDHRA PRADESH
Decided on February 03,1992

MORASA ANJAIAH Appellant
VERSUS
KONDRAGUNTA VENKATESWARLU (DIED) Respondents





Cited Judgements :-

A RAMLOO VS. G SREERAMACHANDRA MURTHY [LAWS(APH)-1999-2-60] [REFERRED TO]
CHINTHALA AJAY REDDY VS. CHINTHALA VENKATA KRISHNA REDDY [LAWS(APH)-1999-8-110] [REFERRED TO]
GULAM RASOOL VS. QUASIM BEE [LAWS(APH)-2000-7-26] [REFERRED TO]
SINGAMSETTY CHIKALA RAMANNA VS. SINGAMSETTY SARASWATHAMMA [LAWS(APH)-2001-8-10] [REFERRED TO]
EDUBILLI APPAMMA VS. IDUBILLI RAMULU [LAWS(APH)-2002-4-95] [REFERRED TO]
K RAMANJANEYULU VS. S ABDUL RAHIMAN [LAWS(APH)-2005-8-113] [REFERRED TO]
B RAMACHANDRA REDDY VS. NELLI [LAWS(APH)-2002-7-103] [REFERRED TO]


JUDGEMENT

Ramanujulu Naidu, J. - (1.)Sri Suresh Kumar, learned counsel appearing for the petitioner, submits that the lower Court committed an error in impleading the petitioner as a party to the suit under Order 1, Rule 10 of the Code of Civil Procedure, the plaintiff having failed to implead her as the legal representative of the deceased 14th defendant by following the procedure prescribed under Order 22 of the Code of Civil Procedure. It is also brought to my notice that the lower Court committed another error in observing that the plaintiff had no notice of the death of the 14th defendant. A certified copy of the memo filed by the advocate appearing for the l4th defendant in the lower court reads that the death of the 14th defendant in the suit on 9-9-1985 was notified to the advocate for the plaintiff in the lower court on 28-11-1985. It, therefore, follows that the plaintiff had notice of the death of the 14th defendant before expiry of the period-prescribed under Order 22 of the Code of Civil Procedure for making an application to set aside the abatement. The specific provisions contained in Order 22 of the Code of Civil Procedure Were not resorted to. Instead on 3-7-1986 the plaintiff chose to file an application under Order 1; Rule 10 for impleading the petitioner as 17th defendant on the ground that she is the heir of the deceased 14th defendant, the application having been ordered, the above revision petition was preferred.
(2.)Sri Suresh Kumar, learned counsel appearing for the peritioner, relies on some what different judgment of Sen, J., in Bhagwan Swroop vs. Mool chand. The leading judgmen was rendered by Desai., who observed:
"There is some force in the contention that when a specific provision is madeas provided in O.22, R.4, a resort to the general provision like O.1, R.10, may not be appropriate. But the laws of procedure are devised for advancing justice and not impeding the same. In Sangram Singh vs. Election Tribunal Kotah, (1955) 2 SCR 1: (AIR 1955 SC 425), this Court observed that a code of procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. This was reaffirmed in Kalipur Das vs. Bimal Krishna Sen, (1983) 1 SCC 14"
Adverting to the aforesaid observations of Desai, J., Sen, J., observed:
"Civil Procedure Code requires that in the event of death of a particular party, heirs and legal representatives of the deceased have to be brought on record within a particular period, provided the cause of action survives. If the legal representatives are not brought on record within the stipulated period, certain consequences follow and the action abates either wholly or partially depending on the facts and circumstances of a particular case. The Code further provides that an application may be made for setting aside the abatement within a stipulated period. It is now well settled that an abatement can be set aside at any time even beyond the period prescribed for making an application for setting aside the abatement, if sufficient cause is shown explaining the delay in the making of the application. If, irrespective of the provisions of the Code and the merits of the case, abatements are to be set aside as a matter of course merely on the ground that abatement is only a consequence of non-compliance of law of procedure and substantial justice is denied to the parties, the result may really amount to a denial of justice and in an indefinite prolongation of a litigation. The provision fixing a particular time for making an application for bringing legal representatives on record with the consequence of the suit or appeal abating if no application is made within time, have been enacted for expeditious disposal of cases in the interest of proper administration of justice. It is further to be born in mind that where suit of ah appeal abates, a very valuable right accrues to the other party and such a right is not to be ignored or interfefed with lightly in the name of doing substantial justice to the party, as depriving a party of a lawful right created in the interest of administration of justice in the absence of good grounds results in injustice to the party concerned. For doing justice to the parties the Courts have consistently.held that whenever sufficient cause is shown by party at default in making an application for substitution, abatement wilt have to be set aside as the good cause shown for explaining the delay in making the application is sufficient justification to deprive the other party of the right that may accrue to the other party as a result of the abatement of the suit or appeal. The Courts have also consistently ruled that laches of negligence furnish no proper grounds for setting aside the abatement. In such cases a party guilty of negligence or laces must bear the consequences of his laches and negligence and must suffer. In appropriate cases, taking into consideration all the facts and circumstances of a case, the Court may set aside the abatement, even if there be slight negligence or minor laches in not making an application within the time provided an over-all picture of the entire case, requires such course for furthering the cause of justice. When negligence and laches are established on the part of the party who seeks to set aside the abatement, the application of such a party should be entertained only in the rarest of cases for furthering the ends of justice only and on proper terms."
Sen, J., added in the said case that the application made by the heirs of the deceased for substitution under Order 1, Rule 10 of the Code of Civil Procedure was indeed misconceived. There is thus apparent conflict of views on the power of the Court to invoke Order 1, Rule 10 of the Code of Civil Procedure in aid of a party who fails to avail of the specific remedy provided under Order 22 of the Code of Civil Procedure.
(3.)In Pulikutla Papanna vs. Pulikuntla Gangulamma, Rama Rao, J., observed:
"It is true that the failure to bring the parties as legal representatives on record does not disentitle the plaintiff from impleading the very same persons as defendants on a different ground altogether, or, on an independent right or liability of the parties without reference to as legal representatives."

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