Nazim Khan vs Bibi Tohidan

Birendra Prasad Verma, J.—The present First Appeal has been preferred against the judgment and decree dated 15th March, 1990 passed in Title Suit No. 16 of 1979 by the learned 9th Subordinate Judge, Saran, Chapra, whereby the aforesaid suit for partition brought by the plaintiff-respondent No. 1 herein with respect to the suit properties, detailed in Schedules-1 and 2 of the plaint, was decreed in part against the contesting defendants and ex parte against the remaining defendants. By an office note dated 3.4.2014, the competency matter of the present first appeal has been placed for consideration by this Court in view of order dated 19.8.1998 and in view of the fact that this first appeal has abated as against the heirs and legal representatives of deceased respondent Nos. 13 and 27, namely, Wokil Khan and Nasruddin Khan, respectively.

On examination of records, this Court finds that this First Appeal was admitted by an order dated 19.4.1991 and notice was ordered to be issued to the respondents. Subsequently, by office note dated 11.9.1995, it was pointed out that process server has reported that respondent Nos. 13 and 27, namely, Wokil Khan and Nasruddin Khan are dead. In view of the aforesaid office note dated 11.9.1995, by an order dated 19.10.1995 passed by the learned Lawazima Board, final time till 13.11.1995 was granted to the appellants for filing substitution petition vice deceased respondent Nos. 13 and 27, subject to law of limitation. Admittedly, this order dated 19.10.1995 was not carried out by the appellants, as a result thereof, the matter was placed for consideration before a Bench of this Court, whereafter by the order dated 16.11.1995 three weeks'' further time was granted to the appellants to file substitution petition vice deceased respondent Nos. 13 and 27. Unfortunately, even this order dated 16.11.1995 passed by a Bench of this Court was not carried out. When this matter was placed once again for consideration before a Bench of this Court, then vide order dated 23.10.1997 it was noted that despite indulgence granted by this Court by order dated 16.11.1995, substitution petition has not been filed on behalf of the appellants. However, one week''s further time was granted, failing which it was observed that legal consequences shall follow and the matter shall proceed in accordance with law. Despite aforesaid indulgence granted by this Court by order dated 23.10.1997 substitution petition was not filed on behalf of the appellants. Under the aforesaid circumstances, by order dated 19.8.1998 a note of abatement of appeal, as against the heirs and legal representatives of deceased respondent Nos. 13 and 27, was recorded.

From the facts stated above, it is apparent that though more than 18 years have already elapsed, when by office note dated 11.9.1995 it was pointed out that the respondent Nos. 13 and 27 are dead, yet no petition has been filed till date seeking substitution of deceased respondent Nos. 13 and 27.

When this matter has been placed for consideration by office note dated 3.4.2014 on the competency matter, learned counsel appearing on behalf of the appellants submits that the respondent Nos. 13 and 27 were not the contesting defendants in the court below, therefore, the appellants are not required to take any steps for substitution of their heirs and legal representatives. According to him, the appellants are exempted from filing substitution petition in terms of Order 22 Rule 4(4) C.P.C. In support of the above contention he has placed reliance on a Division Bench judgment of this Court in the case of Md. S. Imam Vs. Rai Bharat Kumar and Others, . I am afraid, the submissions made on behalf of the appellants cannot be accepted and has to be rejected in view of the latest judicial pronouncements made by the Hon''ble Apex Court in the case of Budh Ram and Others Vs. Bansi and Others, .

It is true that Order 22, Rule 4(4) provides that in appropriate cases the Court 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. For better appreciation Order 22, Rule 4(4) C.P.C. is reproduced hereinbelow:--

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.

In the present case, admittedly, the respondent Nos. 13 and 27 are dead. Apparently, in the present first appeal, time was granted to the appellants by order dated 19.10.1995, again by order dated 16.11.1995 and finally by order dated 23.10.1997 for filing substitution petition vice deceased respondent Nos. 13 and 27. Despite passage of more than 18 years since the first order was passed on 19.10.1995, substitution petition has not been filed on behalf of the appellants. In fact, no petition, at all, has been filed on behalf of the appellants, even for seeking exemption from the necessity of substituting the heirs of the deceased respondent Nos. 13 and 27.

In the case of Budh Ram vs. Bansi (supra) identical issue came up for consideration before the Hon''ble Apex Court, where it was held that even for seeking exemption in terms of Order 22, Rule 4(4) C.P.C., a petition is required to be filed, and only then appropriate order can be passed by the Court granting exemption to the party seeking exemption from necessity of substituting the heirs and legal representation of the deceased respondent, if it is found that such defendant/respondent were/are not a contesting party. For better appreciation, paragraphs-10 and 11 of the aforesaid judgment in the case of Budh Ram vs. Bansi (supra) is reproduced hereinbelow:--

Abatement takes place automatically by application of law without any order of the Court. Setting aside of abatement can be sought once the suit stands abated. Abatement in fact results in denial to hearing of the case on merits. Order 22, Rule 1 C.P.C. deals with the question of abatement on the death of the plaintiff or of the defendant in a civil suit. Order 22, Rule 2 related to procedure where one of the several plaintiffs or the defendants die and the right to sue survives. Order 22, Rule 3 C.P.C. deals with procedure in case of death of one of the several plaintiffs or of the sole plaintiff. Order 22, Rule 4 C.P.C., however, deals with procedure in case of death of one of the several defendants or of the sole defendant. Sub-rule (3) of Rule 4 makes it crystal clear that:--

4(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.

The provisions of Order 22, Rule 4(4) C.P.C. provide that in case, the deceased defendant did not contest the suit and did not file a counter affidavit, the substitution may not be warranted. In the instant case, the High Court repelled the submission regarding application of Order 22, Rule 4(4) C.P.C. on the ground that the said provision requires the presentation of an application before the Court, before it pronounces its judgment for seeking such a relief and once such an application is allowed, in that case, it can only be taken against the said defendant notwithstanding the death of such defendant and such a decree shall have the same force and effect as if it was pronounced before the death had taken place. This view stands fortified by the judgments of this Court in Zahirul Islam vs. Mohd. Usman and T. Gnanavel vs. T.S. Kanagaraj. Thus, it has rightly been held by the High Court that the provisions of Order 22, Rule 4(4) C.P.C. were not attracted in the facts of this case.

In view of the fact that the appeal has abated as against the heirs and legal representatives of the deceased respondent Nos. 13 and 27 and in view of the fact that the present first appeal arises out of the judgment and decree passed in a partition suit, this appeal has become incompetent and it cannot proceed further in view of the law laid down by the Hon''ble Apex Court in the cases of The State of Punjab Vs. Nathu Ram, , Ram Sarup Vs. Munshi and Others, , Rameshwar Prasad and Others Vs. Shyam Beharilal Jagannath and Others, as also Budh Ram vs. Bansi (supra). For the reasons recorded above, the present first appeal as a whole has to fail and is, accordingly, dismissed, but without costs.