IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Revision No.:115/2009 Reserved on: 28.7.2011 Decided on:12.8. 2011 _____________________________________________ Smt. Shanta Kapila. …Petitioner. Versus Smt. Sharda and another. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. Suneet Goel, Advocate. For the Respondents: Mr. Sunil Goel, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. This revision petition is directed against the judgment dated 16.6.2009 passed by Appellate Authority, Fast Track Court, Shimla in Rent Appeal No. 6-S/14 of 2008. 2. Material facts necessary for the adjudication of this petition are that the petitioner-landlady (hereinafter referred to ‘landlady’ for convenience sake) filed a petition against the original tenant/predecessor-in-interest of the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 respondents (hereinafter referred to as ‘respondent’ for convenience sake) on the following grounds: i) The respondent is in arrears of rent from 1.12.2001 till the date of filing of the petition. The respondent is also liable to pay interest @ 9% per annum. ii) That after the commencement of the act the respondent, without consent, written or otherwise, of the petitioner has sub-let or in any other manner transferred his rights under the lease in favour of one Shri Banti who is son of the respondent. It is worthwhile to submit here that the respondent has left the business premises and the said sub tenant is in exclusive possession of the premises. It is further submitted that the premises which were let out to the tenant for running a Tailor Shop are being used by the sub tenant for a purpose other than for which these were let namely for running a grocery shop. iii) That although the respondent has either sub let or in any other manner transferred his rights under the lease to the sub tenant, yet, in alternative it is submitted that in case this Hon’ble Tribunal comes to a conclusion that the premises have not been sub let by the respondent or that he has not in any manner transferred his rights under the lease, in that event the tenant has used the premises without written consent of the landlord, for a purpose for which these were let out to him.” 3 3. Learned Rent Controller issued notice pursuant to which tenant Devi Ram appeared. He filed detailed reply to the petition. He has taken preliminary objection regarding maintainability of the petition in the present form, estoppel and that the petition has not been instituted according to the mandatory provisions of law and the same was not verified properly. On merits, the relationship of landlady and tenant stood admitted. However, it was denied that the rent was ` 1,000/- per month. According to the respondent, the rent payable was ` 400/- per month. The same was recently increased to ` 500/- per month. The petitioner has raised the demand to increase the rent to ` 1,000/- per month. When the tenant refused to increase the rent, present petition was filed. According to him, the rent upto 31.5.2002 had already been paid and he was not in arrears of rent. He was ready and willing to pay rent with effect from 1.6.2002. The issues were framed on 20.9.2002. Thereafter, the matter was listed for evidence of the petitioner. In the meantime, respondent Devi Ram expired on 12.7.2003. This fact was brought to the notice of the Court by the learned counsel for the respondent on 11.12.2003. Petitioner moved an application under order 22 Rule 4 of the Code of Civil Procedure on 14.11.2003 to 4 bring the legal representatives of deceased respondent on record. The application was opposed by the proposed legal representatives of the deceased respondent. According to them, the application was not maintainable since the same has been instituted beyond the period of limitation. The exact date of death of Devi Ram was not disclosed. The respondent has left behind the wife and two sons. All the three were legal heirs of the deceased respondent. According to them, second son has not been shown as his legal heir. Rent Controller framed the issues on 22.9.2005. He dismissed the application on 23.7.2007. According to him, the application has been filed beyond the period of limitation and the petitioner has failed to lead any evidence to corroborate her claim. Petitioner preferred an appeal before the learned Appellate Authority, Fast Track Court, Shimla. He also dismissed the same on 16.6.2009. Hence, the present petition. 4. Mr. Suneet Goel has strenuously argued that both the courts below have adopted hyper technical view. According to him, the application for bringing on record the LRs of deceased Devi Ram ought to have been allowed in the interest of justice. 5. Mr. Sunil Goel has supported the order and judgment passed by both the courts below. 5 6. I have heard the learned counsel for the parties and have perused the record carefully. 7. Devi Ram died on 12.7.2003. Thereafter, case came up before the Rent Controller on 4.7.2003. The same stood adjourned to 6.8.2003. The matter was again adjourned on 6.8.2003 to 14.10.2003. Learned counsel appearing on behalf of respondent, appeared on 6.8.2003 as well as on 14.10.2003. He has not disclosed to the Court or to the learned counsel appearing on behalf of the petitioner that Devi Ram has expired. This fact was disclosed by the learned counsel appearing on behalf of respondent to the Court and learned Advocate appearing on behalf of the petitioner only on 11.12.2003. It was the duty cast upon him to inform the learned counsel appearing on behalf of the petitioner as envisaged under order 22 rule 10 (A) of the Code of Civil Procedure. In the instant case, both the courts below have taken a very very hyper technical view in the matter. 8. Their Lordships of the Hon’ble Supreme Court in P. Jesaya (Dead) by LRs. versus Sub Collector and another, (2004) 13 SCC 431 have held that it is an obligation on pleader of deceased party to inform court and other side of factum of death. Their Lordships have further held that since pleader of respondent has not 6 discharged his duty to inform the Court and other parties of the death and continued to plead the matter, the appeal has not abated. Their Lordships have held as under: “3. The only contention taken up in this appeal is that the first respondent, in the appeal before the High Court, had died during the pendency of that appeal. It is contended that his heirs were not brought on record and, therefore, the appeal before the High Court had abated. In support of this contention reliance is placed on Order 22 Rule 4 of the Code of Civil Procedure as well as the judgments of this Court in the case of Mithailal Dalsangar Singh v. Annabai Devram Kini((2003) 10 SCC 691) and in the case of Amba Bai v. Gopal((2001) 5 SCC 570) It is submitted that as the appeal had abated, the judgment delivered by the High Court is non est and cannot be enforced. 4. Though the arguments are attractive one must also keep in mind Order 22 Rule 10 of the Code of Civil Procedure. It is obligatory on the pleader of a deceased to inform the court and the other side about the factum of death of a party. In this case we find that no intimation was given to the court or to the other side that the first respondent had died. On the contrary a counsel appeared on behalf of the deceased person and argued the matter. It is clear that the attempt was to see whether a favourable order could be obtained. It is clear that the intention was that if the order went against them, then thereafter this would be made a ground for having that order set aside. This is in effect an attempt to take not just the other side but also the court for a ride. These sort of tactics must not be permitted to prevail. We, therefore, see no reason to interfere. The appeal stands dismissed. There will be no order as to costs.” 9. In case learned counsel appearing on behalf of respondent had informed the Court on 6.8.2003 or on 7 14.10.2003 about the factum of death of Devi Ram, ordinarily the petitioner should have moved an application within a period of 90 days. The order passed by the learned Rent Controller is not reasoned. 10. As far as the order of Appellate Authority is concerned, he has come to a conclusion that since the petitioner and deceased were residing in the same building, i.e. Shanta Kunj, Sanjauli, Shimla, the factum of death of Devi Ram was known to the petitioner. However, no material has been placed on record by the tenants by leading tangible evidence that in fact, she knew about the death of the original tenant. In case she knew about the death of the tenant, there was no reason why she would not have informed her counsel. It was the duty cast upon the counsel appearing on behalf of respondent either to inform the court or to the counsel appearing on behalf the petitioner to take appropriate steps for bringing on record the LRs of the deceased respondent. The counsel has appeared before the learned Rent Controller on 6.8.2010 as well as on 14.10.2003. He has disclosed about the factum of death of deceased only on 11.12.2003, i.e. after the period of limitation was over. The learned Appellate Authority has also come to the conclusion that the delay has not been explained while filing application under 8 order 22 rule 4 of the Code of Civil Procedure nor any prayer for setting aside abatement has been made. 11. This question is no more res integra in view of the law laid down by their Lordships of the Hon’ble Supreme Court in Mithailal Dalsangar Singh and others versus Annabai Devram Kini and others, (2003) 10 SCC 691. Their Lordships have held that a simple prayer for bringing LRs on record without specifically praying for setting aside of abatement may in substance be construed as a prayer for setting aside the abatement. Their Lordships have held as under: “8. In as much as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside abatement. So also a prayer for setting aside abatement as regard one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. Once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or any other applicant proposing to 9 bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for.” 12. As far as the delay part is concerned, the petitioner cannot be held responsible for the same. If she had been informed by the learned counsel about the factum of death, she ought to have pursued the remedy diligently by bringing on record the LRs of the deceased respondent. 13. It is the duty cast under order 22 rule 10 (A) of the Code of Civil Procedure that whenever an Advocate appearing for the party to the suit comes to the knowledge of the death of the party, he has to inform it to the Court thereupon give notice of such death to the other party and for this purpose the contract between the Advocate and the deceased party is deemed to subsist. In the instant case, learned Advocate appearing on behalf of respondent did not inform the Court about his death on 6.8.2003. The limitation in this case will run from the date when the learned counsel appearing on behalf of respondent knew about the death of the deceased respondent, but did not 10 inform the Court or the counsel appearing on behalf of the petitioner. Thus, there is no delay in making the application under order 22 rule 4 of the Code of Civil Procedure. 14. In a similar case, their Lordships of the Hon’ble Supreme Court in Urban Improvement Trust, Jodhpur versus Gokul Narain and another, AIR 1996 SC 1819 has held as under: “4. It is stated in the written arguments of the counsel for the respondents that the District Judge by order dated May 27, 1995 brought the legal representatives of the first respondent on record, When application came to be filed in the District Court on May 5, 1995 to the knowledge of the counsel for the appellant, it was ordered on May 27, 1995. The application for substitution is barred by limitation. The special leave petition had abated and, therefore, appeal is not maintainable. We find no force in the contention. Under Order 22, Rule 10A, C.P.C., whenever a pleader appearing for a party to the suit comes to the knowledge of the death of the party, he has to inform about it and the Court thereupon gives notice of such death to the other party and for this purpose the contract between the pleader and the deceased party is deemed to subsist. It would, therefore, be clear that though the legal representatives have been brought on record in the executing Court on May 27, 1995 pending proceedings in this Court, since the counsel for the appellant did not have the information, on coming to know of the death after dasti service was taken out, immediately application under Order 22, Rule 4, C.P.C. and to be filed within 30 days of the date of the knowledge. Accordingly, there is no abatement of the appeal. The State is not expected to keep watch over the 11 survival of the respondent and lapse of counsel to intimate to the counsel appearing in this Court cannot be construed to be knowledge of death. Even if it is assumed that abatement was caused, since application was filed under Order 22, Rule 4, C.P.C. within 30 days from the date of the knowledge there is no delay in making the application to bring the legal representatives on record in this appeal. There is, hence, no abatement by reason of the death of the respondent. The application to bring the legal representatives is accordingly ordered.” 15. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. The order and judgment dated 23.7.2007 and 16.6.2009, respectively are set aside. Application under order 22 rule 4 of the Code of Civil Procedure is allowed. The abatement is set aside. Legal heirs of deceased respondent are permitted to be brought on record. Pending application(s), if any, also stands disposed of. In order to avoid delay, the parties are directed to appear before the learned Rent Controller on 29.8.2011. Records be sent back to the Rent Controller, Shimla of Rent Petition No. 26/2 of 2002 and to the Appellate Authority, Fast Track Court, Shimla of Rent Appeal No. 6-S/14 of 2008 immediately. No costs. (Justice Rajiv Sharma), Judge. 12.8. 2011. *awasthi*