Krishnaveni and 4 others vs Ramachandra Naidu and others

The plaintiffs in O.S.No.275 of 1977 have filed this Civil Revision Petition challenging the order dated 15.12.1997 made by the learned District

Munsif, Tiruvallur in I.A.No.1196 of 1997. The parties will be referred to in this order by the rank assigned to them in the suit itself for

convenience.

The plaintiffs filed O.S.No.275 of 1977 against the defendants for partition and separate possession of their 5/6 shares in ''3'' schedule

properties for ascertainment and recovery of past profits and for future profits from the date of suit till recovery of possession. The second

defendant, viz., Sadasivam, after receiving summons in the suit did not appear in Court. Therefore he was set ex parte on 22.10.1977. He died

long thereafter in the year 1991. The contesting fourth defendant filed a memo into Court on 15.2.1993 intimating the death of the second

defendant. The suit was adjourned from time to time for taking steps, and on 1.6.1993 the suit was dismissed as against second defendant as

abated.

Since the second defendant did not appear in the suit, did not file written statement, and was set ex parte, the plaintiffs did not take steps to

bring his legal representatives on record. As already stated above, the suit was dismissed on 1.6.1993 as against defendant No.2. The plaintiffs

filed I.A.No.1196 of 1997 under Order 22, Rule 4 (4) read with Section 151, C.P.C. praying to set aside the order passed on 1.6.1993 against

second defendant as there was no abatement of the suit as per the provisions of Order 22, Rule 4.

Fourth defendant filed counter to the I.A. opposing it, contending that inspite of the memo filed by him intimating the death of the second

defendant, the plaintiffs took several adjournments and failed to take steps to bring the legal representatives of second defendant on record; the

trial Court was pleased to dismiss the suit against second defendant for non- filing the L.R. Petition in time; hence it was not open to the plaintiffs to

file the present I.A. under Order 22 Rule 4 (4) read with Section 151 C.P.C.; the said petition was an after- thought, highly belated and the

plaintiffs were only interested in prolonging the proceedings.

The Court below after hearing both the parties, dismissed the I.A.No.1196 of 1997 by the order impugned in this civil revision petition.

The learned counsel for the plaintiffs urged that the learned District Munsif failed to see that an application under Order 22, Rule 4(4) C.P.C.

could be filed at any time before pronouncement of the judgment in the suit, and the Court had wide discretion to exempt the plaintiffs from

substituting the legal representatives of second defendant till pronouncement of the judgment; the trial Court also manifestly erred in dismissing the

I.A. on the ground that the plaintiffs had not filed application to bring the legal representatives of the second defendant on record even after several

adjournments, and thereby it failed to exercise jurisdiction vested in it; since the second defendant had remainted ex parte without even filing

written statement there was no obligation on the part of the plaintiffs to implead his legal representatives, and the learned District Munsif acted with

material irreguarity in not following the decisions of this Court, viz., (i) Velappan Pillai Vs. Parappan Panickar and Others, ; (ii) Janabai Ammal Vs.

T.A.S. Palani Mudaliar, ; and (iii) Elisa and others Vs. A. Doss, .

On the other hand the learned counsel for the contesting respondent No.1 argued supporting the order impugned in this revision petition. He

submitted mat the suit was dismissed as against second defendant as early as on 1.6.1993 when steps were not taken by the plaintiffs to bring his

legal representatives on record inspite of the memo dated 15.2.1993 filed in the Court intimating the death of the second defendant; hence the

Court below rightly dismissed the application filed under Order 22, Rule 4 (4) read with Section 151, C.P.C; when the suit was dismissed on

1.6.1993 as against second defendant, the effect of it could not be taken away by filing the I.A. seeking exemption of substitution of legal

representatives of the second defendant; even looking to the prayer made in the I.A. the plaintiffs have sought for setting aside the order passed on

1.6.1993 against second defendant as there was abatement of the suit; the prayer in the I.A. is to set aside the order of abatement of the suit made

on 1.6.1993. Hence no relief could be granted under Order 22, Rule 4 C.P.C. to the plaintiffs.

I have carefully considered the submissions made by the learned counsel for the parties.

As already stated above, the suit is one filed for partition and separate possession. I consider it useful to extract Order 22, Rule 4 (4) which

reads:-

The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has

failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be

pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been

pronounced before death took place.

A plain reading of the above extracted provision unambiguously and clearly shows that the Court whenever it thinks fit, may exempt the plaintiff

from the necessity of substituting the legal representatives of any such defendant,

(i) who has failed to file written statement, or

(ii) who, having filed it, has failed to appear and contest the suit at the hearing.

Further a Court after granting such exemption may pronounce judgment in such case against the said defendant notwithstanding the death of such

defendant, and the Judgment so pronounced shall have the same force and effect as if it has been pronounced before the death took place.

It is not disputed that the second defendant, in spite of service of summons, did not appear in the suit, and failed to file written statement, and

failed to appear and contest the suit at the hearing. Hence the Court below had ample power to grant exemption to the plaintiffs from the necessity

of substituting the legal representatives of the second defendant if the Court thought it fit to do so.

Sub-Rule (4) to Order 22, Rule 4 was inserted by the C.P.C. amendment Act, 1976. It is to be noticed here that there was Madras High

Court amendment even prior to insertion of sub- rule (4) in Rule 4 of C.P.C. by amendment Act 104 of 1976. The Madras High Court

amendment, reads:-

The Court whenever it sees fit, may exempt the plaintiff from the necessity to substitute the legal representative of any such defendant who has

been declared ex parte or who has failed to file his written statement or who having filed it, has failed to appear and contest at the hearing; and the

judgment may in such case be pronounced against the said defendant notwithstanding the death of such defendant, and shall have the same force

and effect as if it has been pronounced before death took place.

From this it is clear that it covers even a defendant who had been declared exparte. In the new sub-rule (4) inserted by C.P.C. Amendment Act,

1976, the earlier amendment made by the Madras High Court has been incorporated.

The learned District Munsif dismissed the application on the grounds that (i) the plaintiffs wantonly delayed in filing the petition to protract the

proceedings; (ii) since the suit had been abated against second defendant, and as it was dismissed on 1.6.1993, I.A. could not have been filed

under Order 22, Rule 4 (4) read with Section 151, C.P.C. thereafter; in other words application under Order 22, Rule 4 (4), C.P.C. could be

filed only before abatement of suit against second defendant; and (iii) no application for impleading legal representatives of the second defendant

was filed along with the I.A. No.1196 of 1997 filed under Order 22, Rule 4 (4).

From the reading of the impugned order of the teamed District Munsif, it is clear that the learned District Munsif was considering the case as if

the plaintiffs ought to have filed the application to bring the legal representatives of the second defendant on record, and after abatement of the suit,

the Court could not exercise power under Order 22, Rule 4 (4), C.P.C., and that the plaintiffs were protracting the proceedings by filing such

petitioner. In my view, the learned District Munsif did not properly comprehend the scope of Order 22, Rule 4 (4).

Order 22 Rule 4 (4) does not say or indicate that an application under the said provision could be made only before abatement of the suit and

not thereafter. If the provision of Order 22, Rule 4 (4), C.P.C. is to be read in that way, it amounts to adding such a restriction, and narrowing

down the scope of the provision. The said provision was intended to give wide discretion to the Court to grant such exemption to plaintiff in

appropriate case from the necessity of substituting the legal representatives of a defendant, satisfying the requirements of the said rule.

This Court in Velappan Pillai Vs. Parappan Panickar and Others, has expressed the view that the provisions of Order 22, Rule 4 (4) (Madras

amendment) could be invoked at any time before pronouncement of judgment, notwithstanding the automatic operation of sub-rule (3). Paragraph

14 of the said Judgment reads:-

In Jag Mohan v. Ramaiah AIR 1962 AP 165 though it does not appear whether there was an abatement, the learned Judges observed that the

rule comes into operation in cases where the plaintiff learns that death of one of the defendants took place before judgment is delivered and the

Court is invited to enter judgment against that defendant also. Rule 4 must be read as a whole, having also in view R.4(1). Where abatement takes

place under the rules the abatement may be automatic. Abatement on death is specifically provided for under rules 3 and 4. Sub-rules (3) and (4)

of rule 4 must be read together. Sub-rule (3) will not operate in cases where an order under sub-rule (4) is made. Statutorily the automatic

operation of sub-rule (3) is taken away when an exemption is granted under sub-rule (4). This is because sub-rule (3) itself provides sub- rule (4)

as its exception and full effect has to be given to the exception.

A Division Bench of this Court in Janabai Ammal Vs. T.A.S. Palani Mudaliar, , after referring to various decisions, in paragraph 13 had stated

thus:-

Natesan, J. in Velappan Pillai Vs. Parappan Panickar and Others, , taking the decision in Lakshmanan Chettiar case, ILR 58 Mad. 752 : AIR

1935 Mad. 236 as settled proposition and following the same, held as follows:-

''In my view the provisions of O.22, R.4 (4), could be availed of at any time before judgment. If a person is proforma respondent, having no

interest in the litigation, the rule providing for abatement cannot apply.

The Karnataka High Court in S.A. Rahim and Another Vs. Rajamma and Others, , agreeing with the view expressed by Natesan, J. in Velappan

Pillai Vs. Parappan Panickar and Others, has ruled thus:-

''If the Court, in exercise of its discretion, grants exemption to the plaintiff from the necessity to substitute the legal representatives of the concerned

defendant, the Court can proceed to dispose of the suit and pronounce judgment against such defendant notwithstanding the fact that the legal

representatives of such defendant have not been brought on record. When such judgment is pronounced, sub- rule (4) expressly provides that it

shall have the same force and effect as if it had been pronounced before the death took place. It, therefore, follows that when a judgment is

pronounced in a suit against the deceased defendant, after according necessary exemption under sub-rule (4), no atatement as such shall be

deemed to have taken effect. As the judgment itself is deemed to have been pronounced during the life time of the deceased defendant, it is

obvious that the abatement shall not be deemed to have taken effect. As, in law, it has to be deemed that no abatement has taken effect.

Recently, in Nepal Chandra v. Rebati Mohan AIR 1979 Gau 1 the Gauhati High Court, agreeing with the view expressed by this Court in

Lakshmanan Chettiar and Another Vs. Chidambaram Chettiar and Others, and Velappan Pillai Vs. Parappan Panickar and Others, , observed

that the provisions of sub-rule (4) of R.4 of O.22 are applicable to appeal as well as to suit and the power to exempt under the said sub-rule can

be exercised at anytime before the judgment, even after the abatement has taken place.

The learned Judge in that case has also pointed out that as sub- rule (4) has not specifically insisted on the filing of an application for exemption,

unlike some of the other provisions in the CPC making the filing of an application obligatory for obtaining any orders from the court under the

concerned provisions, the contention raised in that case that since an application was not filed for exemption under sub-rule (4), the exemption

should not be granted, had no force.

We are in full agreement with the views expressed by the Division Bench of this Court in Lakshmanan Chettiar and Another Vs. Chidambaram

Chettiar and Others, , by Natesan, J., in Velappan Pillai Vs. Parappan Panickar and Others, and by the other High Courts in the decisions referred

to above, and accordingly we grant exemption to the appellant-plaintiff from the necessity of substituting the legal representatives of the deceased

fifth respondent in his place.

From the paragraph extracted above, it is clear that when a judgment is pronounced in a suit against a deceased defendant after according

necessary exemption under sub-rule (4), no abatement as such shall be deemed to have taken effect, inasmuch as the Judgment itself is deemed to

have been pronounced during the life-time of the deceased defendant. In other words the moment exemption from substitution of legal

representatives of a defendant is granted under Order 22, Rule 4 (4), even if there was an abatement by operation of sub-rule (3) of Order 22, its

effect is taken away. This would be the harmonious construction of sub-rule (4) which advance the cause of justice.

Exemption can be given by the Court to the plaintiff from the necessity of substituting legal representatives of a deceased defendant subject to

the satisfaction of the requirement of the said sub-rule, if the Court thinks it fit to do so, even without an application filed by the plaintiff. Filing of

written application under the said sub-rule for getting exemption from substitution of legal representatives is not mandatory requirement of the said

sub-rule. This view of mine gets support from the decision in Janabai Ammal Vs. T.A.S. Palani Mudaliar, and Elisa and others Vs. A. Doss, . M.

Srinivasan, J. (as He then was) in the case of Elisa and others Vs. A. Doss, , in paragraph 3 has stated thus:-

It is seen from the rules that an application to bring the legal representatives on record shall be made within the time limited by law and if no

application is made within the said period, the suit shall abate as against the deceased defendant. That is the effect of sub-rule (3). Sub-rule (4)

provides an exception to sub-rule (3). Under sub-rule (4), it is open to the Court to pass an order exempting the plaintiff from the necessity of

bringing on record the legal representatives of any defendant, who had failed to file a written statement or if having filed the written statement, failed

to appear and contest the suit at the hearing. But, the language of sub-rule (4) is clear enough to show that the Court must pass an order exempting

the plaintiff from the necessity of substituting the legal representatives. Of course, it is not necessary for the plaintiff to file a written application

seeking such exemption, as the rule does not require one. Under the said rule, the Court must apply its mind and think it fit, in the facts and

circumstances of the case, to grant the exemption. For granting such exemption, the defendant who died should have remained ex parte, either

without filing the written statement or after filing the written statement. It is clear from the language of the said rule that the order of exemption shall

be passed before a judgment in the case is pronounced. The relevant portion of the said rule reads that the Court ''may exempt the plaintiff and

''judgment may, in such case pronounced. That part of the sub-rule says that the order of exemption should precede the judgment to be

pronounced in the suit. Sub-rule (5) provides for an application to set aside the abatement caused by the failure of the plaintiff to bring the legal

representatives of the deceased defendant on record within the time prescribed by law. As stated already, under sub-rule (3), the suit shall abate.

Sub-rule (5) provides that even in cases where the suit has abated, it is open to the plaintiff to file an application to have the abatement set aside on

the grounds mentioned in the said rule. Clause (a) of sub-rule (5) provides for a situation where the plaintiff was ignorant of the death of the

defendant and Clause (b) provides that where an application is filed after the expiry of the period specified therefore in the Limitation Act. S. 5 of

the Limitation Act could also be invoked. Thus, Rule 4 of Order 22 is comprehensive enough to deal with a situation where the defendant died

after the institution of the suit and before passing of the judgment.

Paragraph 13 of the Judgment in Janabai Ammal Vs. T.A.S. Palani Mudaliar, is already extracted above, which also supports the view that the

filing of the application under Order 22 Rule 4 (4) C.P.C. is not always necessary.

If exemption from substitution of legal representative of a deceased defendant can be given by the Court under the said sub-rule, at any time

before pronouncement of the Judgment without even an application, there is no reason as to why such an application cannot be made even after

the abatement of a suit against a defendant in a given case. The said sub-rule also does not impose any limitation or restriction in this regard, that an

application can be made only before abatement of a suit takes place as against a particular defendant.

The new sub-rule has been added enabling the Courts to give exemption from the necessity of substitution of the legal representatives of a non-

contesting defendant to avoid delay which otherwise occurs in the substitution of the legal representatives of the deceased defendant, leading to

delay in disposal of the suit. Hence there is hardly any justification to restrict its scope and operation only up to the time of abatement of the suit

and not thereafter by writing something in the sub- rule which does not exist. Sub-rule (4) is independent of sub- rule (3), and the power given to

the Court is not in any way fettered by sub-rule (3). Even the deeming provision i.e., that the Judgment in such cases, pronounced against the said

defendant, notwithstanding the death of such defendant, shall have the same force and effect as if it had been pronounced before the death took

place, indicates that the effect of abatement if any will be taken away once the Court grants exemption under sub-rule (4) before pronouncing of

the judgment.

In Sub-rule (4) of Order 22, Rule 4, no period is prescribed for seeking exemption from the necessity of substituting the legal representatives,

and such exemption could be granted by Court in appropriate cases at any time before pronouncing Judgment. The said sub-rule is in the nature of

an exception to the general rule that, when within the given time by law, if no application is made for substitution of the legal representatives, the suit

shall abate. The learned District Munsif, in the case on hand, has found fault with the plaintiff for having not made an application for bringing the

legal representatives on record along with the I.A. made under Order 22, Rule 4 (4), which, in my view, is not correct. When an application is

made under the new sub-rule (4) for exemption from the necessity of substitution of the legal representatives, there was no need to get the

abatement set aside arises only when the party wants to bring the legal representatives on record.

Hence I respectfully agree and accept the view taken by this Court and few other High Courts, although contrary opinions are expressed by

few other High Courts i.e., Calcutta, Orissa and Andhra Pradesh. Further no contrary decision of the Apex Court is brought to my notice

supporting the contention of the fourth defendant that the power under Order 22 Rule 4 (4) to exempt the plaintiff from the necessity of substituting

the legal representatives of the defendant cannot be exercised after abatement has taken place.

It is also to be noticed that in the affidavit filed by the second petitioner in the C.R.P. in support of C.M.P. No.1006 of 1998 it is stated that

the second defendant, while alive, had alienated substantial portion of the properties in favour of the third defendant Muniammal, and on the death

of Muniammal, her son Ramachandra Naidu is impleaded as the fourth defendant in the suit. The Supreme Court in P.P.K. Gopalan Nambiar Vs.

P.P.K. Balakrishnan Nambiar and others, , has stated thus:-

Sri Nambiar, learned counsel for respondents contended that respondent Nos.2, 4 and 11 have since expired and their legal representatives have

not been substituted, the appeal stood abated. We find no force. Admittedly, before their death they sold their respective shares by registered sale

deeds in favour of other respondents. So, by operation of Order 22, Rule 10, C.P.C. their respective rights devolved by transfer on the

respondents who arc already on record. Therefore, there is no need to bring the L.Rs. of the deceased on record and transpose them as legal

representatives.

The said decision also supports the case of the plaintiffs in the light of the statement made in the affidavit as stated above.

In this view, the Court below ought to have granted the exemption sought for by the plaintiff that too having regard to the nature of the suit

being one for partition and separate possession of the suit properties.

I fail to understand how the plaintiffs who have filed the suit for partition and separate possession are interested in protracting the proceedings,

which ground the Court below accepted.

In the light of the discussion made above, and having regard to the decisions referred to and relied on by me, the following positions emerge:-

(i) The court has power to exempt the plaintiff from the necessity to substitute the legal representative of any defendant, if it thinks fit to do so in the

given facts and circumstances of the case, coming within the purview of the sub- rule, without even there being an application by the plaintiff under

Order 22, Rule 4 (4), C.P.C.

(ii) Such an exemption can be granted at any time before pronouncing of judgment, notwithstanding, there has been an abatement of suit against a

deceased defendant.

In view of what is stated above, I find the order of the learned District Munsif impugned in the Civil Revision Petition is unsustainable. he failed

to exercise jurisdiction vested in him under Order 22, Rule 4 (4), C.P.C. He has also manifestly erred in taking a contrary view that no exemption

could be granted to substitute legal representatives of second defendant after the abatement of the suit has taken place as against the second

defendant. He has acted with material irregularity in not following the Judgments of this Court on the point.

In the result, for the reasons stated, this revision petition is entitled to succeed. Hence it is allowed. The impugned order is set aside; and the

plaintiffs are exempted from the necessity of substituting the legal representatives of the second defendant. No costs. Since the suit is of the year

1977, the trial Court is directed to dispose it of within a period of six months from the date of receipt of copy of this order.