Kuldeep Singh and Others vs Ram Devi and Others

A.L. Vaidya, J.—The present Appellants who happened to be the Plaintiffs brought a suit for possession by way of redemption of the suit land on payment of Rs. 800/-. The mortgage charge over the suit land was created vide registered mortgage deed, dated 27th May, 1919 qua the land measuring 343 Kanals 2 Marlas owned and possessed by Balanda, Rai Singh and Mst. Runko Devi who mortgaged the said land with possession in favour of S/Sh. Nagahia, Thakur and Sunder sons of Sh. Chhaju for a consideration of Rs. 800/-. A major portion of the mortgaged land was under the occupancy tenants who happened to become owners thereof under Act 8 of 1953 and now only 96 Kanals 9 Marlas of land remains under mortgage. The Defendants No. 1 to 7 were the successors-in-interest of the original mortgagees. The original mortgagees were alleged to have transferred their mortgagees'' rights in favour of Defendants No. 8 to 14. The Defendants No. 15 to 17 were also impleaded as party as they were also owners of a part of the suit land. Plaintiffs, as such, claim redemption of the suit land on payment of Rs. 800/-, the principal mortgage money.

The Defendants No. 2,4,7,9,12,13 and 15 only contested the suit and pleaded that the suit land also includes the other land which was held by their predecessor-in-interest under a deed of ''Patta'', dated 21st May, 1919 executed by Baland Singh, Rai Singh, Sawan Singh and Smt. Runko. It was also averred that the contesting Defendants (No. 1 to 7) happened to mortgage some part of the suit land to Defendants No. 9 to 14 for a consideration of Rs. 1200/-. It was further averred that a part of the suit property was alleged to be under mortgage debt with some Muslim which consequently vested in the Union of India, after having been declared as evacuee property.

The parties were put to trial on the following issues, by the trial Court:

Whether the President of India is a necessary party to the suit? OPD.

Whether there is a subsisting relationship of mortgagors and mortgagees between the parties as alleged. If so, what is the mortgage amount. What is the area under mortgagee? OPP.

Whether Defendants No. 1 to 7 have become owners by adverse possession in respect of land detailed in para No. 1 of the written statement? OPD.

Whether there are other mortgagees besides the Defendants No. 1 to 7. If so, its effect? OPD.

Relief.

The suit remained pending before the trial court when on 15th January, 1979, learned Counsel for the Defendants brought to the notice of the court that Sh. Rikhia, Defendant No. 10 had expired. Thereafter, Plaintiffs sought an opportunity to take necessary steps to bring on record the legal representatives of Sh. Rikhia deceased. On 3rd February, 1979 an application was moved by the learned Counsel for the Defendants, alleging therein that since the legal representatives of Rikhia deceased, have not been brought on record, the suit has abated as a whole. Plaintiffs contested the application and it was averred that the deceased Defendant had no more interest in the suit land. However, factum of the death of Defendant No. 10 was not denied.

The trial court framed the following issues, on the aforesaid application:

Whether the Defendant No. 10 had died on 11.2.1978 and if so, whether the suit had abated as a whole? OPA.

Relief.

The trial court came to the conclusion that Defendant No. 10 died on 11th February, 1978 on the basis of entry made in the death certificate (Ex.D-1) and has further held that suit has abated as a whole on account of the lapse on the part of the Plaintiffs to implead the legal representatives of deceased-Defendant No. 10 and consequently suit of the Plaintiffs was dismissed.

The Plaintiffs assailed the aforesaid dismissal order, before the first Appellate Court, on various pleas. During the pendency of the appeal, an application under Order 22, Rule 4(4) of the CPC was moved on behalf of the Plaintiffs. It was pleaded in the application that during the trial before the lower court, it was brought to the notice that Defendant No. 10 had died. It was also averred in the application that deceased-Defendant No. 10 had been proceeded exparte on 28th July,1969 and had not contested the suit and had no interest in the suit. It was prayed through the application that Appellants maybe exempted from bringing the legal representatives of the deceased Rikhia on record under Order 22, Rule 4(4) of the Code of Civil Procedure, in the interest of justice.

This application was contested by the Respondent-Defendants and their main contest has been the maintainability of the said application at this belated stage and contends that the provisions of Order 22, Rule 4(4) of the CPC could not be pressed into operation at this stage when a regular order as to the abatement of the suit had already been recorded by the trial court.

The first Appellate Court, after hearing the arguments on this application, came to the conclusion that since no steps were taken to get the abatement set-aside after condoning the delay, the Plaintiffs cannot be heard to plead that the provisions of Sub-rule (4), Rule 4 of the Order 22 of the CPC could be made applicable, during the appeal. However, it was also averred that the legal representatives of the deceased-Defendant No. 10 had been impleaded as party Respondents, therefore, there was no question of invoking the provisions of Sub-rule (4) Rule 4, of Order 22 of the Code of Civil Procedure, at this stage, and the application was dis-allowed.

The first Appellate Court on merits also came to the conclusion that suit for possession by way of redemption of the suit land had abated as a whole, and as Such, did not interfere with the findings of the dismissal arrived at by the trial court.

The aforesaid judgment and decree of the first Appellate Court, have been assailed in the present appeal on various grounds.

I have heard the learned Counsel for the parties and have minutely scrutinised the entire record.

The first Appellate Court disallowed the application preferred under Order 22, Rule 4(4) of the CPC by the Plaintiffs, on the sole ground that such an application was not legally maintainable after abatement order has been passed. So the limited question of law involved in the present appeal is as under:

Whether application under Order 22, Rule 4(4) of the Code of Civil Procedure, is legally maintainable after passing of the abatement order also?

The first Appellate Court has come to the conclusion, as referred to above, finding support from AIR 1979, Patna 239, Raj Nath Sehgal and Ors. v. Shiva Parshad Sinha. In this ruling it has been held that the legislature has put two conditions while applying the provisions of Order 22, Rule 4(4) and those are:

(1) that the provision will apply in a case where a Defendant has failed to file a written statement, or he having filed it, has failed to appear and contest the suit at the hearing;

(2) that this provision will apply where no order of abatement has been recorded in the case.

It has been discussed in the cited case that if the abatement order has been recorded by the Court, then the provisions of Order 22, Rule 4(4) shall not apply and if the aforesaid conditions are fulfilled, the Court can apply provisions of Order 22, Rule 4(4) at any time before delivery of judgment.

Insofar as factual side of the case is concerned, there is no dispute between the parties that abatement order had been passed by the trial court and the application under Order 22, Rule 4(4) of the Code of Civil Procedure, was preferred before the appellate Court.

Order 22, Rule 4(4) of the CPC runs as under:

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.

Certain other precedents have been cited, which deal with the aforesaid proposition of law. In re: Nisit Mohan Chatterjee 1993 (2) Current Civil Cases, Calcutta High Court, page 189 can safely be referred at this stage. Para 5 of the judgment is very much relevant, which is reproduced hereunder:

As regards the second part of the impugned order, we are required to consider the effect of the amended provision of Order 22, Rule 4 Sub-rule (4) of the Code of Civil Procedure, on the pronouncement of the Division Bench of the Calcutta High Court which has so long held the field. By the amendment no change was effected, in substance, to the provisions of Rules 1, 2, 3 ,4(1), 4(2) and 4(3) of Order 22 of the Code of Civil Procedure. Since the change was with regard to Order 22, Rule 4(4), it is worthwhile to quote the previous rule and indicate the changes which have been introduced therein by the amendment of 1976. With the Calcutta amendment prior to the 1976 amendment Order 22, Rule 4(4) read as follows:

The Court, whenever it sees fit, may exempt the Plaintiff from the necessity substituting the legal representatives of any such Defendant who has failed to file a written statement or 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.

Sub-rule (3) of Rule 4 ended with the following "except as provided in Sub-rule (4) below." The Division Bench held in the case of Nanigopal v. Panchanan, following the single Bench decision in the case of Sankari Prasad v. Kanailal, that the Order 22, Rule 4(4) was one of the exceptions as mentioned in the Order 22, Rule 4(3) stated hereinabove and on such basis laid down that no application under Order 22, Rule 4(4) would be entertained after abatement had taken place. The amendment of Code of Civil Procedure, 1976 while engrafting substantially the provision of Order 22, Sub-rules (3) and (4) as existing prior to amendment made two changes - (i) by deleting the last part "except as herein after provided" and (ii) by substituting the underlined word sees'' by the word "thinks.'' The legislature is presumed to know the law. Therefore, the ratio of Division Bench decision can be presumed to have been known to it but notwithstanding such knowledge there was no inclusion of any period of limitation in the provision of Order 22, Rule 4(4) as it stands now. Secondly, the deletion of a part of Sub-rule (3) above clearly signifies the legislative intent of doing away with the ratio of the Calcutta Division Bench, that the right to pray for exemption in terms of Order 22, Rule 4(4) as it. was adopted by the Calcutta High Court should be asserted before abatement occurred. The consequence of the aforesaid conclusions is that the present provision of Order 22, Rule 4(4) of the CPC has been deliberately made an independent provision as distinct from one previously operating as an exception only. There is another reason, which justifies the above conclusion of ours, and that is the provision of Section 97(2)(r) of the CPC (Amendment) Act, 1976, which envisages that the amended provision shall not apply to any order to abatement recorded before the substitution of the new Order 22, Rule 4. In other words, Order 22, Rule 4(4) as amended would be available, notwithstanding abatement which is an automatic process not dependent on any order of the Court till an order of abatement has been recorded. Such new concept is incompatible with the ratio of the Calcutta Division Bench and the application for exempt ion can be made even after abatement has taken place. Taking into consideration the aforesaid position, we are of the view that the ratio propounded by the earlier Division Bench of this Court has been given a go by and can no longer be held to be binding.

Another case, Mohammad Mustaqeen and Ors. v. Aftab Ahmad and Ors. AIR 1983 Allahabad 368 also deal with this proposition and the following observations are very much relevant:

The intention of the Legislature which can be gathered from the recommendation of the Joint Committee of Parliament, must be borne in mind while interpreting Sub-rule (4) of Rule 4 of Order 22, CPC the intention behind Sub-rule (4) of Rule 4 of Order 22 is that a Plaintiff need not be asked to file an application for bringing on record the heirs of the deceased Defendant when he has not taken any interest in the suit. Keeping this intention in mind, it must be held that an application by the Plaintiff for exemption from substituting the legal representatives of the non-contesting Defendant is not required to be filed within 90 days of the death of the Defendant. The intention of the legislature would''not be fructified if the suit is abated on the application for exemption not being made within 90 days. The expression used in Sub-rule (4) is, "whenever it thinks fit". The word "whenever" means at whatever time or at what time so ever. To accept the argument that an exemption application should be filed within 90 days would result in ignoring that expression altogether. The power to exempt is not inhibited by the condition that the application for the said purpose must have been moved within 90 days. The exemption given by Sub-rule (4) of Order 22, Rule 4 relieves the Plaintiff from the liability of moving a substitution application. It is a maxim of law that words of exemption are not to be construed to import any liability. The exemption granted excuses the Plaintiff from the performance of duty. Accordingly, it must be held that it is not necessary for invoking the power of exemption conferred by Sub-rule (4) of Order 22, Rule 4 to move an application within 90 days. In fact, even an application for the said purpose is not required and the Court by looking into the record itself grant the exemption. The power conferred is on the Court, and invoking of the same is not a condition precedent for its exercise.

On factual side which is borne by the record of the case, it is revealed that this Defendant No. 10 died on 11th February, 1978. Defendant No. 12 was his brother. On 28th July, 1969 Defendant No. 10 was proceeded exparte having been duly served. After having been proceeded exparte, a notice was again issued to this Defendant by the transferee court on 22nd January, 1976. Again, he was proceeded exparte after having been duly served. Admittedly, this Defendant No. 10 had not put in any written statement, but on the other hand written statement had been filed by Defendants No. 1,2,6,7,9,12,13 and 14. Issues in the suit were framed as far back as on 25th August, 1969 in the absence of Defendant No. 10 who had been proceeded against exparte on 28th July, 1969.

The trial court when passed the order of dismissal on account of abatement could have taken note of aforesaid factual side and the proposition of law which was revealed from the record itself. In a case of present nature where the order of the Court revealed that this Defendant No. 10 had been proceeded exparte on 28th July, 1969 and thereafter it also further revealed that he had not filed any written statement, the trial court could have suo-motu passed the order under Order 22, Rule 4(4) of the Code of Civil Procedure. In this context, there was no legal occasion for the trial court to have passed an order of abatement.

Otherwise also, as per law cited above and as per provisions contained under Order 22, Rule 4(4) of the Code of Civil Procedure, even the first Appellate Court on the application of the Plaintiffs could have passed an appropriate order after setting aside the order of abatement also. There is nothing in Order 22, Rule 4 of the CPC that application under the provisions of law has to be preferred by the Plaintiffs before passing of the abatement order. Abatement is always automatic. There is absolutely no pre condition of that type as has been observed by the first Appellate Court to file an application under Order 22, Rule 4(4) of the Code of Civil Procedure. The provisions provides that "Court whenever thinks fit, may exempt the Plaintiff from the necessity of substituting the legal representatives...." which clearly signifies that discretion is given to the Court to be exercised at any stage of the proceedings. It can be so exercised during the trial or even during the pendency of the appeal. It has been contended on behalf of the Respondents that such discretion could be exercised by the Appellate Court in case said Defendant had died during the pendency of the appeal. I think such interpretation cannot be made available to the Respondents in view of the specific terms used in Order 22, Rule 4(4) of the Code of Civil Procedure, referred to above. It has already been discussed above that even the Court suo-motu could pass an order to that effect in case so revealed from the record itself. Such a prayer can otherwise be made even after the abatement has taken place or has ordered by the Court. The only pre condition was whether such a 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. In the present case, this Defendant No. 10 was proceeded exparte and did not present himself during the trial of the suit and had not filed any written statement. With this background, present case was a fit case where applicability of Order 22, Rule 4(4) of the CPC was legally called for which could have been complied with by the Court suo-motu.

Learned Counsel for the Appellant has also based his argument on the basis of doctrine of sufficient representation of the estate of the deceased. This argument may not be necessary to be elucidated and taken note of on the basis of the discussion earlier held in the case.

Thus, in view of the aforesaid circumstances, not only the trial court but the first Appellate Court acted illegally in dismissing the suit having been abated after dis-allowing the application, preferred under Order 22, Rule 4(4) of the Code of Civil Procedure, by the Plaintiff-Appellants. Keeping in view the factual side of the case, as pointed out earlier, application moved by the Plaintiff-Appellants under Order 22, Rule 4(4) of the CPC is accepted and as a consequence thereof there is no necessity of substituting the legal representatives of Defendant No. 10 and judgment in the suit be pronounced against the Defendant No. 10 notwithstanding the death of Defendant No. 10 and shall have the same force and effect as if it has been pronounced before death took place. Present appeal is accordingly accepted and the judgment and decree passed by the two courts below, dismissing the suit having been abated, are set-aside. The suit is remanded back to the trial court with a direction that same be finally disposed of in accordance with law without any undue delay. The parties are left to bear their own costs and they are further directed to appear before the trial court on 5th June, 1995.

No order in view of disposal of the main appeal.