Sarathamani and Another vs Chellammal @ Thangammal and Others

R.S. Ramanathan, J.—Though the respondents 5 to 18 were served and the names of the respondents 5 to 18 appeared in the cause list,

they have not chosen to appear before this Court either in person or through a counsel and hence, the matter is taken up for final disposal. The

plaintiffs are the revision petitioners. The plaintiffs filed the suit for partition against 20 defendants and according to the plaintiffs, the partition is

sought for in respect of the properties belonging to the plaintiffs and the defendants 1 to 4. The defendants 5 to 20 are impleaded on the ground

that they are the co-pattadhars and they are only the formal parties. The defendants 10 and 12 have died and both of them were already set ex

parte and therefore, the revision petitioners/plaintiffs filed application under Order 22 Rule 4 seeking exemption from the Court to bring on record

the legal representatives and that application was dismissed and aggrieved by the same, this Civil Revision Petition is filed.

The learned counsel appearing for the revision petitioners, Mr. N. Manokaran submitted that the Court below without properly appreciating the

scope of Order 22 Rule 4 of CPC and the judgments rendered by this Court and

(a) in the Elisa and others Vs. A. Doss,

(b) in the Krishnaveni and 4 others Vs. Ramachandra Naidu and others, and the judgment of the Hon''ble Apex Court

(c) in the T. Gnanavel Vs. T.S. Kanagaraj and Another, wherein the judgment of this Court Elisa and Others v. A. Doss (supra) was confirmed,

dismissed the application filed by the plaintiffs/revision petitioners under Order 22 Rule 4 CPC.

The learned counsel appearing for the respondents 1 to 4 submitted that the Court below has got discretion to grant permission and exemption

and the Court below exercised its discretion and refused to grant exemption sought for by the petitioners and therefore that order cannot be

challenged in this revision.

According to me, the Court below without properly appreciating the provisions of Order 22 Rule 4 CPC erred in refusing to grant the

exemption sought for by the plaintiffs. Admittedly, the defendants 5 to 20 are impleaded only as formal parties on the ground that they are the co-

pattadhars and they have no right over the suit properties and the suit for partition is only in respect of the properties jointly owned by the plaintiffs

and the defendants 1 to 4. It is further admitted that all the defendants 5 to 20 remained ex parte and the defendants 1 to 4 also filed statement

stating that they have no right over the suit properties. In the judgment, in the matter of Elisa and Others v. A. Doss (supra), this Court has held as

follows:

It is seen from the rules that an application to bring the legal representatives on record shall be made within the time limited by law and if no

application is made within the said period, the suit shall abate as against the deceased defendant. That is the effect of sub-rule (3). Sub-rule (4)

provides an exception to sub-rule (3). Under sub-rule (4), it is open to the Court to pass an order exempting the plaintiff from the necessity of

bringing on record the legal representatives of any defendant, who had failed to file a written statement or if having filed the written statement, failed

to appear and contest the suit at the hearing. But, the language of sub-rule (4) is clear enough to show that the Court must pass an order exempting

the plaintiff from the necessity of substituting the legal representatives. Of course, it is not necessary for the plaintiff to file a written application

seeking such exemption, as the rule does not require one. Under the said rule, the Court must apply its mind and think it fit, in the facts and

circumstances of the case, to grant the exemption. For granting such exemption, the defendant who died should have remained ex parte, either

without filing the written statement or after filing the written statement. It is clear from the language of the said rule that the order of exemption shall

be passed before a judgment in the case is pronounced. The relevant portion of the said rule reads that the Court ''may exempt the plaintiff and

''judgment may, in such case pronounced''. That part of the sub-rule says that the order of exemption should precede the judgment to be

pronounced in the suit.

The said judgment has been confirmed by the Hon''ble Supreme Court in the judgment in the matter of T. Gnanavel v. T.S. Kanagaraj and Another

(supra).

In the judgment, in the matter of Krishnaveni and 4 Others v. Ramachandra Naidu and Others (supra), this Court in paragraphs 9 to 12, has

held as follows:

As already stated above, the suit is one filed for partition and separate possession. I consider it useful to extract Order 22, Rule 4(4) which

reads:

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 the above extracted provision unambiguously and clearly shows that the Court whenever it thinks fit may exempt the plaintiff

from the necessity of substituting the legal representatives of any such defendant,

(i) who has failed to file written statement, or

(ii) who, having filed it, has failed to appear and contest the suit at the hearing.

Further a Court after granting such exemption may pronounce judgment in such case against the said defendant notwithstanding the death of such

defendant, and the Judgment so pronounced shall have the same force and effect as if it has been pronounced before the death took place.

It is not disputed that the second defendant, in spite of service of summons, did not appear in the suit, and failed to file written statement, and

failed to appear and contest the suit at the hearing. Hence the Court below had ample power to grant exemption to the plaintiffs from the necessity

of substituting the legal representatives of the second defendant if the Court thought it fit to do so.

Sub-Rule (4) to Order 22, Rule 4 was inserted by the C.P.C. amendment Act, 1976. It is to be noticed here that there was Madras High

Court amendment even prior to insertion of sub-rule (4) in Rule 4 of C.P.C. by amendment Act 104 of 1976. The Madras High Court

amendment, reads:

The Court whenever it sees fit, may exempt the plaintiff from the necessity to substitute the legal representatives of any such defendant who has

been declared ex parte or who has failed to file his written statement or who having filed it, has failed to appear and contest at the hearing; and the

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.

From this it is clear that it covers even a defendant who had been declared ex parte In the new sub-rule (4) inserted by C.P.C. Amendment Act,

1976, the earlier amendment made by the Madras High Court has been incorporated.

Therefore, considering the provisions of Order 22 Rule 4 CPC and the judgments referred to above, the Court below ought to have exercised

the discretion judicially and according to me, the Court below failed to exercise the discretion judicially and therefore, this Court has got every right

to interfere with the discretion exercised the Court below. In the result, the order of the Court below made in I.A. No. 868 of 2010 in O.S. No.

358 of 2005 on the file of the Additional District Munsif Court, Tiruchengode dated 3.11.2010 is set aside and the civil revision petition stands

allowed. Consequently, connected miscellaneous petition is closed. However, no order as to costs.