Order 22 rule 3 c.p.c.
sridhar pasumarthy
(Querist) 11 July 2013
This query is : Resolved
Respected Expers,
Pls provide me a solution.
The facts are :
Father preferred civil appeal in the District court in the month of January, 2013 against a decree and judgment of lower court. Appeal was numbered on 17-04-2013
But, in the mean time between filing the appeal and numbering the appeal i.e. on 2-2-2013, the father/ sole appellant died.
on 08-07-2013, when the appeal stands posted for service of notices to the respondents, the appellant counsel filed memo intimating the death of his client and thereby, the Hon'ble District Judge dismissed the appeal as abated.
The deceased father/appellant has three sons. Now, one of the sons wants to file a petition for his impleadment as L.R. The other sons are not co-operating for him.
What is the remedy for him?
Pls Clarify. Thanks in advance.
prabhakar singh
(Expert) 11 July 2013
It is not clear on what date appeal was filed in JAN.13.?
It is also not clear why appeal filed in JAN 13 was numbered on 17-04-2013 as it does not happen in normal course??
I shall guide you only when you tell facts properly and not in this disguised manner.
adv. rajeev ( rajoo )
(Expert) 11 July 2013
File an application to bring the LRs on record along with an application for setting aside the abetment.
R.K Nanda
(Expert) 11 July 2013
agree with expert Rajeev.
sridhar pasumarthy
(Querist) 11 July 2013
Thanks for your speedy replies.
@Prabhakar Sir,
It took about three months for numbering the appeal because of some miscellaneous objections taken by the office of the court and due to sudden death of Head clerk etc. etc.
It is usual at out place when a suit/appeal is filed, it takes few months for numbering.
As Mr. Rajeev replied, I want to file an application for impleadment of LRs along with petition to set aside abatement and section 5 petition.
But the problem is other LRs are not willing to join with the intending petitioner to file LR petition.
My doubt is for the maintainability of a suit/appeal, all the LRs of the deceased party need to be added subject to exceptions.
How a single LR can maintain petition under order 22 rule 3 c.p.c. ignoring the other LRs?
If he alone files such petition, does the court allow it?
prabhakar singh
(Expert) 11 July 2013
Decliners may be sought to be impleaded as proforma respondents pleading their absence.
sridhar pasumarthy
(Querist) 11 July 2013
@ Prabhakar Sir,
Can the party seeking for impleadment may aver in his affidavit along with order 22 rule 3 petitioner as follows :-
"I alone filed this petition as other LRs are not co-operating with me.
I hereby undertake that I will take necessary steps to bring the other LRs(Decliners as stated by you) on record soon after my impleadment in the appeal."
Pls reply
prabhakar singh
(Expert) 11 July 2013
No. Not that way.
First state the fact that appellant after filing the appeal died on date 2-2-2013 leaving behind his so and so (name all LRS in the body of application with their address in this paragraph).
Then state that LRS were not aware of the filing of appeal by deceased appellant.
Then state how and when the applicant LR came to know about the appeal and abatement order passed in it(as you need to move delay condonation too).
There after plead that except applicant LR,
the other LRS of the deceased appellants are not present for time being at the time of filing these applications seeking set aside of abatement order therefore they are being proposed to be substituted as proforma respondents in the appeal.
Rajendra K Goyal
(Expert) 11 July 2013
Well advised by the experts, nothing more to add.
R.Manivasagan
(Expert) 11 July 2013
It is better to implead the petitioner as 2nd Petitioner/Appellant and in the same petition get a permission to implead the other Legal Heirs as Respondents to avoid multiplicity. u need not wait to file another application to implead the other Legal Heirs till the order passed in the petitioner's application
prabhakar singh
(Expert) 11 July 2013
The advice of Mr.R.Manivasagan is correct but sorry reasons stated are not.
sridhar pasumarthy
(Querist) 12 July 2013
Now, my doubt is clarified.
Thank you one and all for giving your valuable replies.
