Priti Ranjan Gupta And Ors vs Maya Gupta and Ors

Shivakant Prasad, J

The plaintiffs/petitioners filed Title Suit No. 11 of 1970 before the learned 10th Sub-Ordinate Judge at Alipore for declaration of their right, title and interest in the suit property and also for permanent injunction against the defendants/respondents nos. except 2 to 9 the proforma defendants.

The defendant no. 1 Maya Gupta contested the suit which was decided vide the judgment and decree dated February 28, 1985 by the learned trial Court and the defendant no. 1 preferred an appeal which stood decided by the learned Court of the 6th Additional District Judge at Alipore in Title Appeal No. 349 of 1985 by the judgment and decree dated 15th April, 1989 allowing the appeal against the plaintiffs.

The plaintiffs on being aggrieved challenged the said judgment and decree dated April 15, 1989 reversing the judgment and decree dated February 28, 1985 passed by the trial Court in Title Suit No. 11 of 1970.

During the pendency of the appeal Maya Gupta the respondent no. 1 died intestate on December 10, 2002 and an application for substitution of the heirs of the said deceased respondent no. 1 filed on behalf of the petitioners/appellants being CAN 927 of 2003 was allowed by order dated 10.01.2018 by the Registrar Administration (Lawazima).

An application for making note of the death of the respondent nos. 4 & 9 in the Memorandum of Appeal and also recording attainment of majority of Respondent nos. 5 & 6 was also allowed by Hon'ble Court by order dated 10.10.2002 directing the department to amend the cause title for taking note of the death of the Respondent nos. 4 & 9 namely Mridul Das and Shila Das.

It is contended that during the pendency of the instant appeal the Proforma Defendant/ Respondent no. 2 Sadhan Das and the respondent no. 6 Kanu Das have died and the aforesaid respondents have neither filed their written statement in the suit being Title Suit no. 11 of 1970 filed on behalf of the plaintiffs/ petitioners nor contested the aforesaid suit and only the defendant no. 1 contested the suit.

Accordingly, the petitioners have prayed for leave of this Court to pass an appropriate order for dispensation of service of notice of appeal upon the non-contesting respondents for expediting the hearing of the instant appeal who have neither filed the written statement nor contested the suit filed on behalf of the plaintiffs/appellants as no relief has been claimed against the aforesaid respondents nos. 2 to 9 who have been impleaded as proforma defendants in the said Title Suit no. 11 of 1970.

Now, the petitioners have prayed for an appropriate order for exempting the petitioners from substituting the aforesaid heirs of the deceased respondent nos. 2 & 6 namely, Sadhan Das and Kanu Das under the provisions of Order 22 Rule 4(4) of the Code of Civil Procedure and to record the death of the proforma defendant/respondent nos. 2 & 6 in the cause title of the Memorandum of Appeal of the instant case. It is contended that the Proforma Defendant/ Respondent no. 2 Sadhan Das has died intestate on 26.11.2013 leaving the Opposite Parties nos. 2(a) & 2(b) as his legal heir and representatives. The Opposite Parties nos. 2(a) & 2(b) are the sons of the deceased Proforma Defendant/Respondent no. 2.

The proforma respondent no. 6 died intestate on 05.3.2005 as a bachelor and represented by his brother Kartick Das being the only heir proforma respondent no. 3 and the Proforma respondent no. 9 Shila Das died in the year 1983 as a spinster who is also represented by her brother as her only heir being the proforma respondent no. 3.

The instant suit being Title Suit no. 11 of 1970 was decreed by the learned 10th Subordinate Judge at Alipore against the Respondents/Defendant nos. 1 on contest and ex parte against the rest of the defendants. It is submitted that the aforesaid Proforma Defendant/Respondent nos. 2 to 9 neither filed the written statement nor contested the suit.

Accordingly, petitioners have sought for exempting them from taking steps for service of summon by dispensing with the service of notice of appeal of the instant appeal upon the heirs of the said deceased Proforma Defendant/Respondent no. 2 namely, 2(a) Sanjay Das and 2(b) Debasish Das who are major, sui-juris and non-contesting defendants and so also upon the proforma respondent nos. 2 to 9 who did not contest the suit as per the provision under Order 41 Rule 14(4) of the Code of Civil Procedure.

In support of his case learned counsel for the petitioners relied on a decision in case of Md. S. Imam Vs. Rai Bharat Kumar & Ors. reported in AIR 2000 Patna 321 wherein the learned single Judge referred the case for decision of a question to be decided by Division Bench as to whether a Court can proceed with a suit without substitution as provided under Order XXII, Rule 4(4) of the Code of Civil Procedure in a case where the defendant dies before filing of the written statement.

Rival contention in the cited decision was that the stage to file an application for exemption under Order XXII, Rule 4(1) of the Code is prior to the abatement of the suit against the deceased defendant. Once the defendant has died and abatement has taken effect due to non-filing of the substitution petition within time, the prayer for exemption cannot be allowed.

Similar contention has been raised by learned counsel for the respondent no.1 relying on the observation made in para 18 of the cited decision contending that prior to the insertion of Sub-rule (4) in Rule 4 of Order XXII of the Code, a similar provision was interpreted by the Honb'le Calcutta High Court in cases namely, Sankari Prasad v. Kanai Lal, reported in (1948) 52 Cal WN 599, Nani Gopal v. Panchanan, reported in (1945) 49 Cal WN 305 and Annapurna v. Harsundari, reported in AIR 1975 Cal 12 wherein the consistent view taken was that the power to exempt vested in the Court under the provisions contained in the said amendment can be exercised only before abatement has taken place and not thereafter.

In rebuttal Learned counsel for the petitioners argued by placing reliance on a Division Bench decision of Calcutta High Court in case of Nishit Mohan Chatterjee, reported in (1993) 97 Cal WN 636 wherein it has been settled that after incorporation of Sub-rule (4) by the Amending Act in Order XXII, Rule 4 of the Code, the earlier judgments of the said Court were no longer a good law and the power of exemption under Sub-rule (4) of Order XXII, Rule 4 of the Code can be exercised even after the abatement had taken place and further adverted my attention to the observations made in paragraphs 10, 12, 14, 15 and 16 of the cited decision in Md. S. Imam Vs. Rai Bharat Kumar & Ors.(supra) which are reproduced hereunder for profitable consideration:

"10. Order XXII of the Code contains provisions with regard to the death, marriages and insolvency of parties. It also contains a provision with regard to the substitution in case of death of the parties. Rule 4 contains a procedure in case of death of one of several defendants or of sole defendant. Sub-rule (1) provides that if one of two or more defendants dies and the right to issue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall bring the legal representative of the deceased defendant on the record and proceed with the suit. In other words, in a case where a party dies and if the eventuality as mentioned in Rule 4(1) of Order XXII of the Code happens, then his heir is to be brought on the record and, thereafter, the suit will proceed. Sub-rule (3) provides that if no application is made under Sub-rule (1), within the time prescribed by law, the suit will abate against the deceased defendant. Prior to the amendment by the Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976) (hereinafter 'referred to as 'the Amending Act'), there was no provision in the Code vesting discretion in the Court to exempt the plaintiff from substituting the legal representatives of the defendant, who is non-contesting defendant. The High Courts of Assam, Delhi, Calcutta, Madras, Karnataka and Orissa, by amendments incorporated a provision in Order XXII, Rule 4(4) of the Code vesting discretion in the Court to exempt the plaintiff from the necessity of substituting the legal representatives of the deceased defendant in case after appearance, he has not filed written statement or after filing the written statement has failed to contest the suit.

Section 97 of the Amending Act contains a provision with regard to repeal and savings and Section 97(2)(r) provided that the amending provisions as contained in Rule 4 of Order XXII shall not apply to any order of abatement made before the commencement of the said Section 73. Section 73 came into force on 1-2-1977.

According to Order XXII, Rule 4(3) of the Code, if the defendant dies and no application is filed for substitution of his heirs within the statutory period, the suit abates automatically and no specific order is required. (See Union of India v. Ram Charan, reported in AIR 1964 SC 215 and the case of Madan Naik v. Hansubala Devi, reported in AIR 1983 SC 676). Sub-rule (4) thereof, as stated above, vests a discretion in the Court to exempt the plaintiff from the necessity of filing an application for substituting the legal representatives of the deceased 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 of the suit and the discretion is, to be exercised by the Court "whenever it thinks fit" prior to the delivery of the judgment. After grant of exemption, the Court may pronounce a judgment against the deceased defendant and such judgment will have the same effect and force as if it has been rendered and pronounced before the death took place, meaning thereby the judgment will be deemed to have been rendered while the defendant was alive.

If the intention of the legislature was that the question of exemption is to be considered by the Court only before abatement has taken place, then it would have clearly indicated in Sub-rule (4) and would not have given a wide discretion by providing the words "whenever the Court thinks fit". The said provision leads to one interpretation that the power of exemption has to be exercised on the fulfilment of the condition mentioned therein at any stage even after the abatement has taken effect. Sub-rule (4) is an exception to Sub-rule (3) and in the cases covered by Sub-rule (4), the suit will not abate against the deceased defendant and the Court may render a judgment against a dead person also and that judgment will have the effect as if it was passed during his lifetime. In other words, Sub-rule (4) is not controlled by Sub-rule (3), on the other hand, Sub-rule (3) has no application to the cases covered by Sub-rule (4), meaning thereby in that situation, the suit will not be treated to have abated against the deceased defendant.

The said interpretation gets further strength from the repeal and saving clause as contained in Section 97(2)(r) of the Amending Act, which provides that the provisions of Sub-rule (4) of Order XXII shall not apply to any order of abatement made before the commencement of Section 73 of the Amending Act, meaning thereby if an order of abatement has been made on or before 1-2-1977 when the Amending Act came into force, the provision of Sub-rule (4) will not apply. It will apply after 1-2-1977 and exemption may be granted even if the abatement has taken place. The interpretation of Sub-rule (4) to the effect that it is controlled by Sub-rule (3) will amount to ignoring the clear intention of the legislature incorporated in clear and plain words in Order XXII, Rule 4(4) of the Code."

It would be apt to take note of the observations made in paragraph 5 of the decision in case of NITISH MOHAN CHATTERJEE reported in 97 Calcutta weekly note 636 as under-

"5. 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 produced therein by the amendment of 1976. With of 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 of 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 Vs. Panchanan reported in 59 C.W.N. 304, following the Single Bench decision in the case of Sankari Prasad Vs. Kanailal reported in 52 C.W.N. 599, 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 civil procedure Code, 1976 while engrafting substantially the provision of order 22 sub-rule 4(3) and (4) as existing prior to amendment made two changes i) by deleting the last part "except as hereinafter provided" and ii) by substituting the underlined word sees 'by' the word 'thicks'. The legislature is presumed to know the law. Therefore, the ratio of the 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 allotment occurred. The consequence of the aforesaid conclusions is that the present provision of order 22 Rule 4(4) of the code of Civil Procedure 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 Civil Procedure (Amendment) Act, 1976, which envisages that the amended provision shall not apply to any order of 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 abetment which is an automatic process not depended 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 exemption 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. Division Bench of this Court has been given a go by.''

Judging the facts and circumstances of the instant case and taking cue from the above cited decision, this Court is of the view that exemption from necessity of substituting legal representatives of respondents/defendants can be granted as they have not appeared and contested the suit before the trial court by filing written statement, even though the suit has abated by operation of law for none substitution of the legal heirs of the deceased pro forma respondents/ defendant as the Court is empowered to exercise power under Order XXII, Rule (4)(4) of the Code.

Accordingly, the appellants/petitioners are exempted from effecting service of notice of appeal against the deceased respondents.

Thus the applications being CAN No. 4805 of 2018 with CAN No. 2312 of 2019 with CAN No. 2311 of 2019 are hereby disposed of.

Urgent certified Photostat copy of this Order, if applied for, be supplied to the parties upon compliance with all requisite formalities.