Mohammad Mustaqeem and Others vs Aftab Ahmad and Others

K.C. Agarwal, J.—This petition filed under Article 226 of the Constitution challenges the validity of an order of the Special Judge Economic, Offences, Allahabad, dated .29-1-1983, rejecting a revision filed by the Petitioners u/s 115, Code of Civil Procedure. The revision had been preferred against the order of the Civil Judge dated 24-4-1982, passed in Original Suit No. 86 of 1964.

Suit No. 86 of 1964 had been filed by Aftab Ahmad for partition against a number of persons, including one Hafiz Rahim Bux, who had been arrayed as Defendant 4. He died on July 22. 1977, leaving behind Nanhey and eleven others as his legal heirs. On 29-10-1977, the Plaintiff Aftab Ahmad moved an application in the trial court for substitution of legal heirs of the deceased Hafiz Rahim Bux. Subsequent to the moving of the substitution application, the Plaintiff applied for inclusion of one more name in the list of the heirs of deceased Hafiz Rahim Bux. These applications were opposed by the contesting Defendant. Before these applications could be disposed of, the Plaintiff also applied for setting aside the abatement and condonation of delay. In the meantime. Nanhey and others, who were the legal heirs of the deceased Hafiz Rahim Bux, made an application under Order 1 Rule 10 CPC for being impleaded as parties to the suit on the ground that they were the legal heirs of the aforesaid deceased.

On 24-4-1982, the trial court allowed the application made under Order 1, Rule 10 CPC and made no specific order on the application of substitution made by the Plaintiff. Aggrieved by this order, the contesting Defendants went up in revision u/s 115, Code of Civil Procedure. The revision was dismissed on 29-1-1983. Hence the writ.

Before me, the learned Counsel appearing for the contesting Plaintiff-Respondent supported the judgment by submitting that as the deceased Hafiz Rahim Bux had not contested the suit, the court below was justified in exempting the Plaintiff from bring his heirs on record. The submission made further was that as the heirs of the deceased had themselves applied for being impleaded as parties, there was no need for the Plaintiff to move any substitution application and, as such, even if the application moved by the Plaintiff was time barred, that did not abate the suit. Both these contentions are well founded.

There used to be a great deal of controversy about the effect of not bringing on record the heirs and legal representatives of the Defendant who did not either file the written statement or contest the suit. As a remedial measure Calcutta Madras. Karnataka and Orissa High Courts had inserted a new Sub-rule in Rule 4 of Order 22 CPC to the effect that substitution of the legal representatives of a non-contesting Defendant would not be necessary and the judgment delivered in the case would be as effective as if it had been passed when the Defendant was alive. The Joint Committee of Parliament recommended for adoption of the said rule in Order 22 Rule 4 Code of Civil Procedure. The recommendations made by it were:

The Committee are therefore, of the view that in order to avoid delay in substitution of the legal representatives of the deceased Defendant and consequent delay in the disposal of the suits, similar provision may be made in the Code itself. New Sub-rule (4) in Rule 4 of Order 22 has been inserted accordingly.

The background which led to the insertion of Sub-rule (4) in Rule 4 of Order 22 is based on the recommendation of the aforesaid Committee. The intention of insertion is clear from the recommendations made by the Joint Committee. This was done with a view to curtail waste of unnecessary time. We have, therefore, to keep the intention of the Legislature in mind while interpreting Sub-rule (4) of Order 22 Rule 4 Code of Civil Procedure. It is now well established that intention of legislature, including the recommendations of the Joint Select Committee, can be considered and looked into for interpreting a legislation. In Rameshwar Prasad and Others Vs. State of Uttar Pradesh and Others, , the view taken by the Supreme Court was that whenever a court is called upon to interpret an amended provision, it has to bear in mind the history of the provision, the mischief which the legislature attempted to remedy, the remedy provided by the amen silent and the reason for providing such remedy.

The learned Counsel for the Respondent urged that this power of exemption conferred by Sub-rule (4) of Rule 4 of Order 22 can be invoked only in those cases where the application for the said purpose has been made under the provisions of Sub-rule (4) within 90 days. According to him, once a suit is exemption (sic), the Court has no power under the aforesaid Rule to exempt. His argument was that abatement of a suit by not filing an application for substitution is automatic and on such automatic result coming into existence, there is nothing before the Court, so far as the deceased Defendant is concerned, in which any order for exemption under Sub-rule (4) or another order could be possibly made.

For the submission made, the learned Counsel relied on certain decisions, which were Sankri Prasad Singh deo v. Kanailal Rao (1948) 52 Cal WN 599, Nani Gopal v. Panchanan (1955) 59 Cal WN 304. and Laxmi Charan v. Satyabadi AIR 1964 Orissa 39. In all of these cases, the view taken was that the words "Whenever the Court sees (thinks) fit," in the context must mean that the Court sees fit within 90 days from the date of death and before abatement takes place. These authorities no doubt support the Petitioner''s contention. Two courses are open to the Plaintiff, either to make an application for substitution or to file an application invoking the Court''s power of exempting from the necessity of substituting the legal heirs of the deceased. If either of the two things are not done, the irresistible conclusion would be that the suit will stand abated as against the deceased.

I have given my considered thought over the matter, but find myself unable to agree with the view taken in these cases. The intention behind the 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 when he has not taken any interest in the suit. That intention could 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 interpretation put forward by the Petitioners'' learned Counsel 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, to me. it appears that moving of application within 90 days is not at all necessary, as was argued by the Petitioners'' learned Counsel.

Dissenting with the view taken by the Orissa and Calcutta High Courts the Karnataka High Court held in S.A. Rahim and Another Vs. Rajamma and Others, , that exemption application is not required to be filed within 90 days of death. To the same effect is the view of Gauhati and Patna High Courts in Nepal Chand Saha v. Rebati Mohan Saha AIR 1979 Gauhati 1 and Rajnath Sahgal and Others Vs. Shiva Prasad Sinha and Others, . In Nepal Chand Saha''s case (Supra), strong reliance had been placed by the learned Judge on a decision of the Madras High Court reported in Velappan Pillai Vs. Parappan Panickar and Others, . In this decision, the controversy in issue has been considered in great detail. I am in respectful agreement with the view taken by the Madras High Court.

A legal action on the death of a party to a suit passes into a state of suspense which itself passes into a state of abatement, if the legal representatives are not brought within time. But in a case where there is no need of moving a substitution application for bringing on record the heirs and legal representatives of a Defendant who had not filed his written statement or contested the suit, the said position would not emerge. Not bringing on record his legal representatives would not result in the abatement of the suit as the law now does not contemplate the same.

I am, therefore, of the opinion that it, is not necessary, for invoking the power of exemption conferred by Sub-rule (4) of Order 22 Rule 4 Code of Civil Procedure, to move an application within 90 days. In fact, to me it appears that even an application for the said purpose is not required and the Court can 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.

Another aspect of the matter which has been rightly highlighted by the learned Additional District Judge is that when the heirs and legal representatives of the deceased had moved an application for being brought on the record under Order 1, Rule 10 Code of Civil Procedure, there was no question of the suit abating on the basis of the heirs having not been brought on record within 90 days. In fact, they would have been the beneficiary of the abatement of the suit. But, when they did not object and waived their right accruing from not moving of the application, the contesting Defendants could not claim the benefit by making out a ground out of it.

In this respect, one aspect of the matter must be further clarified. It is this that if an exemption is granted by a Court to the Plaintiff from moving an application for substitution that would not take away the right of the legal representatives to get themselves substituted or brought on record subsequently. In a proper case, the court will consider such an application on merits judicially and pass appropriate orders thereon. Granting of exemption has nothing to do with the right of the legal representatives of moving an application for being brought on record. The fact that the suit would not, abate on account of the deceased having filed a written statement or contested the suit earlier, should not be confused with the right of the legal representatives of moving an application to be substituted or brought on record. On their being brought on record, the suit will proceed on merits, and that will not entitle the impleaded representatives to urge that the suit had abated.

For these reasons, the writ, petition fails and is dismissed with costs payable to the Plaintiff-Respondent.