Mere Mention Of Word 'Dead' In Small Font Against Party's Name Doesn't Satisfy Duty To Inform Under Order 22 Rule 10-A CPC: J&K&L High Court

The High Court of Jammu & Kashmir and Ladakh has held that merely mentioning the word “dead” against the name of a deceased respondent in a small font, without specifying the date of death, does not amount to compliance with the obligation cast upon counsel under Rule 10-A of Order XXII of the Code of Civil Procedure, 1908.The Court observed that such conduct reflected a deliberate attempt to keep the appellants in the dark until expiry of the limitation period for substitution of legal representatives.The Court was hearing a batch of applications arising out of a Civil Second Appeal, including applications seeking dismissal of the appeal as abated due to the death of one of the respondents, and applications seeking condonation of delay, setting aside of abatement and substitution of legal heirs.A Bench of Justice Sanjeev Kumar took note that “the font of the word 'dead' is far smaller than the font used in the application as well as the title, … done with a deliberate attempt to keep the appellants in the dark till the period of limitation expired and the appeal stood abated.”The Court accordingly held that “mentioning the word 'dead' in the smallest possible font against respondent No. 7, without indicating the day, month and year of death, cannot be said to be compliance with the duty enjoined upon the learned counsel by Rule 10-A of Order XXII.”The applications arose after one of the respondents in the Civil Second Appeal died during the pendency of the proceedings. The surviving respondents sought dismissal of the appeal as having abated on the ground that the appellants had failed to move an application for substitution of legal representatives within the prescribed limitation period.The appellants, however, sought condonation of delay and setting aside of abatement, contending that they acquired knowledge regarding the death of the respondent only after an application seeking dismissal of the appeal as abated was filed by the surviving respondents.The appellants argued that the learned counsel appearing for the respondents had never discharged the obligation cast under Rule 10-A of Order XXII CPC by properly informing the Court about the death of the respondent. According to the appellants, the respondents maintained calculated silence so that the statutory period for substitution could expire.The respondents opposed the plea and argued that the appellants were residents of the same village and therefore had knowledge of the death. Reliance was also placed upon an earlier application where the word “dead” had been mentioned against the name of the deceased respondent.The High Court examined the scheme of Order XXII CPC dealing with death, marriage and insolvency of parties, particularly Rules 4 and 10-A. The Court observed that under Rule 10-A, counsel appearing for a party is under a statutory obligation to inform the Court about the death of the party represented by him, whereupon notice is required to be issued to the opposite side.The Bench observed: “Since the learned counsel appearing for a party is the best person to know about the death of his client, he has been put under a duty to bring this fact to the notice of the Court so that the opposite party is informed.”The Court noted that before filing the application seeking dismissal of the appeal as abated, the respondents' counsel had not formally communicated the death of the respondent to the Court.The High Court found that the attempt to rely upon a prior application mentioning the word “dead” in a smaller font did not amount to proper compliance with Rule 10-A CPC.The Court further observed that the appellants could not reasonably be expected to understand the legal consequences of failure to substitute legal representatives within time merely because they may have been aware of the death as residents of the same village.The Bench held: “The niceties of law as to whether the appeal would proceed against the surviving respondents or would abate are also aspects which the appellants cannot be expected to be aware of.”The Court reiterated that the expression “sufficient cause” under Section 5 of the Limitation Act ought to receive liberal construction in matters involving setting aside of abatement to advance substantial justice.The Bench observed: “It is always the tendency of the Courts to set aside abatement and decide matters on merits rather than terminate the proceedings on technical grounds.”The Court further held: “In the matter of abatement, the words 'sufficient cause' should receive a considerably more liberal approach.”The High Court ultimately held that the appellants had satisfactorily explained the delay in filing applications seeking the setting aside of the abatement and the substitution of legal representatives.Accordingly, the Court condoned the delay, set aside the abatement of the appeal and directed that the legal heirs of the deceased respondent be brought on record.Case Title: Maqbool Buhroo and Others v. Ahad Buhroo...

Mere Mention Of Word 'Dead' In Small Font Against Party's Name Doesn't Satisfy Duty To Inform Under Order 22 Rule 10-A CPC: J&K&L High Court

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Mere Mention Of Word 'Dead' In Small Font Against Party's Name Doesn't Satisfy Duty To Inform Under Order 22 Rule 10-A CPC: J&K&L High Court

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