FOOD CORPORATION OF INDIA TADEPALLIGUDEM Vs. RAMACHANDRA BOILED AND RAW RICE MILL

JUDGEMENT

(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. 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 on 23-6-76 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 statutory Corporation, it has bot 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 Ist 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 place 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 defendants 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 defendant 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 expeditions 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.