• Defendant is dead

Dear Respected Lawyers,

In 2018, we filled Regular Civil Suit against 5 neighbors, in lower court for road encroachment.
Case is still in " issue" and " steps " phase. 
But after 3-4 dates none of defendants are appearing in court, and against 3 defendants court already issue No WS order,, 5th one is local municipal corporation, pimpri, chinchwad, Pune. And now we have requested court to issue ex-party order against all since no one is appearing in court except local municipal corporation, and its in process

Main number 1 defendant ( main person ( local goon ) who has encroached road, ) died this year February 2023, But we were out of town for approx. 1 month for my Son's marriage and when we return in month of march, we come to know from other neighbors that defendant no1 is died 
Since his sons are also local goon and alcoholic, we have no contact with them.

Since its Plaintiff's, Our duty to add legal representative of dead defendants, but none of the defendants is appearing in court and we don't have any proof that defendant no 1 is dead.
So I have few questions regarding this:

Question 1 - Do we need to inform to court ( orally or in written ), that main defendant is died.

Question2 - But if we do this, again we have to send summon to defendant no1's legal representative and again we have to wait 8 to 9 month at least for further process.

Question 03 - And our advocate is telling that , why to inform to court since we dint have any proof, exact date when defendant is died, And this will also be in our favor, so that we can ex party order early and no need to fight again in court, since it will take time.

Question 04 - And if we don't inform to court, will our case get abates automatically even after we get ex-party order.

Question 05 - Since it's already 6 month complete, can we add legal representative name even after that without having any proof. 

Question 06 - Even if case get Abates, can we fill new case again defendant's legal representative 

Different Question 07 - Can we fill case in revenue court as well as in local municipal corporation, Pune, since in civil court this is taking time, and will limitation act will apply 

Or please suggest other solution on this if any.

Kind Regards,
Sumit Kadam
Asked 10 months ago in Property Law
Religion: Hindu

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18 Answers

1) if you are aware he is dead you must inform court 

 

2) if you inform court then you have to make application to bring his legal heirs on record 

 

3) we do not comment on legal advice given to you 

 

4) if you have come to know recently inform court and make application to bring legal heirs on record 

 

5) you are at liberty to take such legal proceedings as necessary 

 

6) revenue court has no jurisdiction in the case 

Ajay Sethi
Advocate, Mumbai
95146 Answers
7597 Consultations

5.0 on 5.0

1. You can file a memo informing the court about the death of the defendant.

2. You have to adhere to the process of law.

3. You can follow your advocate's advise if you feel comfortable with it.

4. No.

5. You can file an application to implead the LRs, they will be sent summons, if they have any objection they will inform court accordingly after which the court will decide on the subject.

6. You have to file a petition to set aside the abatement.

. 7. You can approach any one court at a time and not both

T Kalaiselvan
Advocate, Vellore
85348 Answers
2227 Consultations

5.0 on 5.0

1. Yes. You being plaintiff should file application to implead legal heirs of deceased defendant. 

2. Yes, it is procedure otherwise suit shall stand abetted against legal heirs damaging your case and claim. 

3. Not right advise. It would prove self damaging. 

4. No. The report regarding death may be intimated by postal department and process server. 

5. Yes. File application on the ground of recent knowledge of death otherwise your application shall be time barred. Limitation in such case is 90 day's from date of death. 

6. No barred by law. 

7. No. 

Siddharth Srivastava
Advocate, Delhi
1270 Answers

5.0 on 5.0

1. Ordinarily you should inform the Court about his demise and file an application for deleting his name. It is not relevant that his sons are also goons but if they also have encroached the road then you should add there names also.

 

2,3& 4. Since you have not yet come to know about his demise officially, you can avoid informing the Court about his demise. However, if you manage to get an order against him then it will not be possible to execute the said order against him since he is no more.

 

5. & 6. If they have also encroached the road, you can add their names also.

 

7. It is a Civil Case. 

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

If you are living in the same area means between radius of 100 mtrs. Than better to inform court that defendant no 1 is dead. 

 

But if you are living out side area and far away from issue area than take the order from court and let the defendant can go for appeal.

 

In you case natural law is applicable so or other way.

But chance are very bright to get Exparte that will be in your favor.

Ganesh Kadam
Advocate, Pune
12933 Answers
256 Consultations

4.9 on 5.0

1. If you have reliable information , then you can inform the court that due to death of Defendant No.1 he is not appearing before the court. 

2. Yes, after giving the information , you will have to take permission of the said court after moving an application, and allowing to summons his legal heirs. 

3. Yes, if you not having proof of his death and the names of his legal heirs , then in the absence of lack of information you can avoid to inform the court. 

4. Yes, if the defendant No.1 has expired then where this ex-parte order/decree will be applied , and also depend upon the nature of case 

5. You can inform the court after mentioning that just you came to know regarding his death , but due to not having proper proofs of the same , could not inform the court 

6 .Yes

7. Encroachment of land is a civil nature case 

Mohammed Shahzad
Advocate, Delhi
13486 Answers
200 Consultations

5.0 on 5.0

Answer for Q1 - Written Application be filed before court to add LRs of defendant, 

Answer for Q2 - it will not take 8-9 months, request to Court for short date

Answer for Q3 - It takes some time but if after ex-parte any LR approached to court it will take more time to decide the case

Answer for Q4 - It will not abated but get ex-parte it no LR approach to Court

Answer for Q5 - You can file application to add LRs with request to Court that you are not having proof

Answer for Q6 - No new case can be filed on the same ground 

Answer for Q7 - No you can file case only before one authority

Harsh Kumar Sachdeva
Advocate, Delhi
44 Answers
3 Consultations

4.3 on 5.0

1 yes

2 no need only information to count in enough you will have to bring legal heir of defendant on record 

3 it is duty to inform all true facts to court

4 that will amount to playing fraud upon the court and that order will be set aside if truth comes out

5 yes

6 civil case doesn’t get abated after death of party 

7 on same cause if action the case will not be entertained by other bodies when it’s subjudice before court unless you have alternative remedies under law before that forum 

Prashant Nayak
Advocate, Mumbai
32146 Answers
183 Consultations

4.1 on 5.0

Question 1: Yes, you need to inform the court about the death of the defendant. You can do this orally or in writing. The court will then issue an order to add the legal representatives of the deceased defendant to the case.

Question 2: If you inform the court, the case will be paused until the legal representatives of the deceased defendant are added. This can take some time, but it is necessary to ensure that the case is fair to everyone involved.

Question 3: Your advocate is correct that you do not need to inform the court about the death of the defendant if you are confident that you will be able to get an ex-parte order. However, it is still a good idea to inform the court, as this will avoid any potential problems down the road.

Question 4: If you do not inform the court about the death of the defendant, the case may be abated. This means that the case will be dismissed. You can then file a new case against the legal representatives of the deceased defendant.

Question 5: Yes, you can add the legal representatives of the deceased defendant to the case even after 6 months have passed. However, you will need to provide evidence of the death of the defendant.

Question 6: If the case is abated, you can file a new case against the legal representatives of the deceased defendant. However, you will need to start the process from the beginning.

Question 7: In the present case revenue court has no jurisdiction to try the case.

I hope this answers your questions. Please let me know if you have any other questions.

Akshit Aggarwal
Advocate, Delhi
52 Answers

5.0 on 5.0

it is not nice to conceal true facts from the Court

a person who has approached the Court has to do so with clean hands

as you are aware from certain information that D1 is dead then you should bring this to the notice of the court

you can tell the court that you do not know about the whereabouts of deceased D1

if the legal heirs are not joined within the statutory period under the CPC then the suit will simply abate, however only against the dead defendant

that means your suit will still continue

so whatever is the fact must be brought to the notice of the Court

if your information about death of D1 is correct then i do not agree with your advocate that the same should be concealed from the Court so that you get an ex-parte decree. As a responsible officer of the Court it is the duty of the advocate to bring to the notice of the court the true and correct facts. Concealing and suppressing material facts is a professional misconduct. An advocate aside from espousing the cause of his client also has a corresponding duty towards the Court 

the revenue court and local MC has no jurisdiction to decide the dispute which is involved in your present suit. They cannot declare the rights of the parties either ways

Yusuf Rampurawala
Advocate, Mumbai
7552 Answers
79 Consultations

5.0 on 5.0

In legal proceedings, there are certain important steps and considerations that need to be kept in mind. Firstly, it's crucial to promptly inform the court about any significant developments, such as the unfortunate demise of the defendant. Adhering to the established legal processes is of utmost importance. If you find yourself in a situation where you're unsure about the best course of action, it's advisable to seek guidance from your legal counsel; following their advice can provide you with a sense of confidence and understanding.

When it comes to involving other parties, there is a formal approach. If you intend to include the Legal Representatives (LRs) of a party, you can formally submit an application to the court for their inclusion. Subsequently, the LRs will receive official summonses. Should they hold any objections to their involvement, they are required to communicate this to the court, which will then make a decision based on the information provided.

In instances where legal proceedings are at risk of being halted due to certain circumstances, it's necessary to take proactive steps. To address situations like the abatement of a case, you'll need to initiate a legal petition to set aside this abatement.

It's important to note that, in the pursuit of legal actions, you are generally expected to approach one court at a time rather than pursuing simultaneous action in multiple courts. This approach ensures clarity and adherence to proper legal procedures.

Anik Miu
Advocate, Bangalore
9153 Answers
111 Consultations

4.7 on 5.0

1. Yes, if circumstances so permit and there is sufficient cause to justify delay. 

2. If legal heirs are added then on their demand you shall be required to supply full set of plaint. 

Siddharth Srivastava
Advocate, Delhi
1270 Answers

5.0 on 5.0

1. You can file a petition under order 22 rule 9 to set aside abatement and also a petition under section 5 of limitation act to condone the delay in filing this set aside abatement petition.

If the reasons stated in the affidavit are genuine and convincing to the court, then the condone petition would be allowed.

2. You can send only the summons to the LR of the deceased defendant, they can obtain copies if they do not have one by filing copy application.

 

T Kalaiselvan
Advocate, Vellore
85348 Answers
2227 Consultations

5.0 on 5.0

1 yes

2. All documents filed 

Prashant Nayak
Advocate, Mumbai
32146 Answers
183 Consultations

4.1 on 5.0

You can make an application for condonation of delay 

 

2) court would condone delay in interests of justice 

 

3) you would have to furnish all documents sought by legal representatives 

Ajay Sethi
Advocate, Mumbai
95146 Answers
7597 Consultations

5.0 on 5.0

The court may allow your request to add the legal representative's name of the deceased defendant, even if it is after the 90-day and 60-day deadlines, as long as you can provide proper justification and submit a condonation of delay application to the court. The justification should explain why you were unable to add the legal representative's name within the deadlines.

And

You will need to send the legal representative of the deceased defendant a copy of the entire case file, including the written statement that was submitted by the defendant. This is because the legal representative needs to have all of the information about the case in order to defend it.

Akshit Aggarwal
Advocate, Delhi
52 Answers

5.0 on 5.0

1. Yes, court will allow , you can mention before the court , that since the defendant was not appearing before the court , then recently upon verification you came to know regrinding his death. 

2. Firstly court will allow your application to substitute his legal representative after sending a notice of the application .  

Mohammed Shahzad
Advocate, Delhi
13486 Answers
200 Consultations

5.0 on 5.0


Dear Client.
1. Adding legal representative's name: If you have discovered that Defendant No. 1 has passed away and you wish to add their legal representative's name to the suit, it's advisable to consult with a lawyer. They can guide you on the specific procedures and requirements for adding a legal representative's name to the suit. While the general rule under Order 22 of the Civil Procedure Code (CPC) is to add the legal representative's name within 90 days, Section 5 of the Limitation Act allows for condonation of delay in certain cases. The court will consider the circumstances and justification provided in the application for condonation of delay.

2. Serving documents to legal representative: If you need to serve documents to the legal representative of Defendant No. 1, it's advisable to consult with a lawyer to understand the specific requirements. Generally, you may need to serve a copy of the relevant documents, including the written statement filed by Defendant No. 1, to the legal representative. The lawyer can guide you on the appropriate procedure for serving the documents, which may include sending a summons or notice along with the relevant documents.

Anik Miu
Advocate, Bangalore
9153 Answers
111 Consultations

4.7 on 5.0

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