Naseema & Others vs Iqbal Sabri & Others

Manoj K. Tiwari, J

By means of present writ petition, petitioners have challenged the judgment dated 17.12.2016 passed by 2nd Additional District Judge, Roorkee, District Haridwar in Civil Revision No. 33 of 2014, whereby the order passed by learned trial court on plaintiff's application refusing exemption under Order 22 Rule 4(4) of C.P.C. has been set aside.

Respondent no. 1 (Iqbal Sabri) filed a suit for specific performance contending that power of attorney holder (Mr. Rajendra Prasad-defendant no. 2) of the owner of suit property (Mr. Jai Prakash Gupta-defendant no. 1) had executed an agreement to sell in his favour on 19.08.1991 with the stipulation that he can get the sale deed executed on or before 28.02.1992. It was further contended that time for executing sale deed was extended from time to time and lastly it was extended upto 20.12.1996, however, it is now learnt that owner of the suit property (defendant no. 1) has executed a sale deed in favour of defendant no. 3 [(Laik Siddique-defendant no. 3 (predcesssor-in-interest of the petitioner)]. The said suit was registered as Original Suit No.194 of 1997 in the Court of Civil Judge (Senior Division), Roorkee, Haridwar.

Defendant No. 1 pased away during pendency of the suit on 26.12.2001. In the month of September, 2012, plaintiff (Iqbal Sabri) moved an application under Order 22 Rule 4(4) CPC seeking exemption from the necessity of substituting the legal representatives of defendant no. 1. Such exemption was sought on the ground that defendant no. 1 had not participated in the proceedings of the suit after filing his written statement and learned trial Court had also ordered to proceed ex parte against him vide order dated 25.01.2011.

Learned trial Court rejected the application filed by the plaintiff vide order dated 12.02.2014 by holding that defendant had not only filed his written statement on 17.09.1998 but he had regularly appeared on different dates including at the time of framing of issues on 14.03.2000, and he had also submitted list of witnesses on 29.03.2000 and on 06.03.2002 he had moved an application seeking time for filing rebuttal to the expert report. Learned trial Court further observed that the Court remained vacant between 28.05.2002 to 07.01.2006 and subsequently when the case was transferred to the Court of First Additional Civil Judge (Junior Division), Roorkee, then the said Court also remained vacant between 05.09.2006 to 06.07.2007.

Against rejection of his application, plaintiff (respondent no. 1 herein) filed revision petition under Section 115 CPC, which has been allowed by learned Second Additional District Judge, Roorkee, District Haridwar vide judgment dated 17.12.2016, and plaintiff's application under Order 22 Rule 4(4) CPC was allowed. Thus, feeling aggrieved, legal representatives of defendant no. 3 have filed this writ petition.

Heard Mr. Siddhartha Singh, learned counsel for the petitioner, Mr. Tapan Singh, learned counsel for respondent No. 1 and perused the record.

Mr. Siddhartha Singh, learned counsel for the petitioners submits that predecessor-in-interest of the petitioners had purchased the suit property by a registered sale deed from its owner (defendant no. 1). He further submits that presence of legal representatives of defendant no. 1 is essential, as they alone can throw light on various aspects, which are within their exclusive knowledge. He further submits that after transfer of the case to the Court of First Additional Civil Judge (Junior Division) Roorkee, notice of such transfer was not served upon defendant no. 1, as he was residing with his son outside Roorkee town due to old age and ill health, therefore it cannot be said that defendant no. 1 deliberately did not appear before the trial Court.

Order 22 Rule 4(4) of C.P.C. is extracted below:-

"Order 22 Rule 4 Procedure in case of death of one of several defendants or of sole defendant

(1) .....

(2) .....

(3) .....

(4) 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 Rule 4(4) of Order 22 CPC reveals that exemption from necessity of substituting heirs of the defendant can be given to the plaintiff in case of non-contesting defendant.

In other words, if a defendant has contested the suit, then exemption under Order 22 Rule 4(4) CPC cannot be given. A perusal of the order passed by learned trial Court reveals that defendant no. 1 had been contesting the suit diligently, therefore the condition precedent for exercise of power under Order 22 Rule 4(4) CPC was not existing. Thus, learned trial Court was justified in rejecting the application made by plaintiff seeking exemption from the necessity of substituting legal representative of defendant no.1.

However, learned revisional Court without adverting to the reasoning given by learned trial Court for rejecting plaintiffs application has allowed the application under Order 22 Rule 4(4) CPC filed by the plaintiff.

Learned revisional Court has overlooked the fact that non participation of defendant no. 1 in the proceedings of the suit has happened only after its transfer to the Court of First Additional Civil Judge (Junior Division) Roorkee and earlier he was regularly appearing before the trial Court. Thus, this Court finds substance in the submission made on behalf of the petitioners that defendant No. 1 had no knowledge about transfer of the case from one court to another.

Thus, the view taken by learned revisional Court cannot be sustained in the eyes of law. The judgments relied upon by the learned revisional Court are clearly distinguishable on facts and they do not support the case of the plaintiff (respondent no. 1 herein).

In such view of the matter, impugned judgment dated 17.12.2016 rendered by learned revisional Court is unsustainable in the eyes of law. Accordingly, the writ petition is allowed and the impugned judgment dated 17.12.2016 is set-aside.

Since the suit was filed way back in the year 1997 and nearly 22 years have gone by, therefore learned trial Court is directed to decide the suit as expeditiously as possible, preferably within nine months from the date of production of certified copy of this order. Unnecessary adjournment to the parties shall be avoided.