YOG RAJ PURI v. YOGESHWAR RAJ PURI — 1981 DIGILAW 218 (DEL)

( 1 ) THE facts leading to the above mentioned application succinctly are that Col. M. L. Puri, who was father of the plaintiff-Sh. Yog Raj Puri, defendants 1, 2, 5 and 6, namely, Lt. Col. Yogishwar Raj Puri, Sh. Yugal Raj Pri, Smt. Laila Devi Dewan and Smt. Primla Devi Dewan and was grandfather of defendants 3 and 4, who are minor children of Col. Yadav Raj Puri and grand maternal father of Smt. Padma Devi, who is daughter of Smt. Sushila Devi, deceased daughter of Col. M. L. Puri, died on 24th April, 1949, leaving behind his widow Smt. Chanan Devi and his sons and daughters mentioned above as his legal heirs. Col. Puri owned a large number of stocks and shares and other securities and was operating several accounts with various banks, some of the accounts being jointly in his name and his wife Smt. Chanan Devi or one or other of his sons. The accounts which Col. Puri had in the joint names of himself and one or other on his sons/wife were payable to "either or surviver". On the death of Col. Puri the securities and shares held in his personal account as also in his account jointly with his wife Smt. Chanan Devi were transferred in the name of his wife by the bank concerned viz. Allahabad Bank Limited defendant No. 8. Smt. Chanan Devi died on 22nd Sep. , 1961, leaving behind her sons and daughters etc. as mentioned above as her heirs. She also had a locker with Punjab National Bank defendant No. 9 which was in the joint name of herself and defendant No. 1. Further she had some account with defendant No. 8 in her personal name as well as in the joint names of herself and defendant No. 1/herself and defendant No. 2. ( 2 ) ON 16th Oct. , 1961, the plaintiff instituted this suit in the Court of Senior Sub-Judge, Delhi, which was registered as Suit No. 460/61. He claimed l/7th share in the moveable assets owned by his deceased mother and asked for partition thereof. He also required defendants 1 and 2 to render account of the joint accounts of the mother with defendant No. 8 as also joint locker of the deceased with defendant No. 9. He claimed l/7th share in the moveable assets owned by his deceased mother and asked for partition thereof. He also required defendants 1 and 2 to render account of the joint accounts of the mother with defendant No. 8 as also joint locker of the deceased with defendant No. 9. Thus, he claimed a decree for his share in the shares, securities and moneys belonging to his mother with costs. It was, inter alia, averred that taking advantage of their joint names in the aforesaid accounts and in the locker, defendants 1 and 2 had illegally and without the knowledge of the plaintiff had misused/ misappropriated the same by obtaining signatures of their mother on blank cheques etc. However, he sought amendment of the plaint which was allowed vide order dated 8th Jan. , 1963, subject to payment of costs and he filed his first amended plaint dated 18th Jan. , 1963 on 22nd Jan. , 1963. In the amended plaint the plaintiff took up the stand that Col. Puri used to operate and maintain accounts in his own name and in joint names of himself and one or other of his sons and his wife. However, the proprietary rights in the moneys and the securities held in all such accounts were that of Col. Puri only and the persons as joint operators of the accounts had no ownership rights therein. Thus, on the death of Col. Puri the same devolved upon the sons and widow of Col. Puri in equal shares. He claimed that be had 8/35th share in the assets left by his father Col. Puri and his mother Smt. Chanan Devi and asked for division of the same. Still later he moved yet another application sometime in 1968 and the same was allowed vide order dated 23rd March, 1968 and he put in second amended plaint dated 23rd March, 1968, claiming l/4th share in the shares, securities and other assets of his deceased father. While re-stating that on the death of Col. Puri his assets including the shares, securities and the accounts devolved upon his sons and widow in equal shares and reiterating that Smt. Chanan Devi died on 22nd Sep. , 1961, leaving behind the plaintiff and defendants 1 to 7 as her legal heirs, he asserted that he had l/4th share in all those assets, shares, securities and moneys etc. of Col. , 1961, leaving behind the plaintiff and defendants 1 to 7 as her legal heirs, he asserted that he had l/4th share in all those assets, shares, securities and moneys etc. of Col. M. L. Puri and Smt. Chanan Devi Puri. Thus, he seeks to exclude the daughters of the deceased from inheritance of both his parents. ( 3 ) THE evidence of the plaintiff in the affirmative concluded on 25th Apr. , 1968 and evidence of the defendants concluded on 1st Aug. , 1969. Thereafter, rebuttal evidence of the plaintiff was recorded in part when the parties agreed to refer the disputes to the sole arbitration of Shri Bhim Sen Sachar by mutual consent. However, it appears that the reference was subsequently revoked. In 1973 the suit was transferred to this Court on the original side and it dragged on its dreary course without any progress till 1976 when the plaintiff moved yet another application (I. A. 1552/76) for amendment of the plaint so as to incorporate the plea of res judicata pursuant to the judgment and decree passed in his favour in another suit being Suit No. 350/62. It may be pertinent to add here that on an application having been made in the Court of Senior Sub-Judge, Mahasu (Himachal Pradesh) for the grant of succession certificate with regard to certain moveable assets of late Col. Puri, succession certificate was granted to defendant No. 1 to administer the estate by mutual consent of the parties on 13th Nov. , 1949. However, on 27th Nov. , 1961 the plaintiff instituted Suit No. 350/62 against defendants 1 to 7 therein claiming l/4th share in the properties which were the subject-matter of the succession certificate, the other co-sharers being defendant No. 1, defendant No. 2 and predecessor-in-interest of defendants 3 and 4, in equal shares. A preliminary decree for accounts regarding the moveable assets of the deceased (Col. M. L. Puri) covered by succession certificate granted by Mahasu Court was passed in favour of the plaintiff and against defendant No. 1, the share of the plaintiff having been fixed at l/4th. Thus, the plaintiff sought to incorporate the plea of res judicata. However, the same was disallowed vide detailed order dated 6th May, 1977 of Chadha, J. Thereafter, the plaintiff was allowed to proceed with the remaining rebuttal evidence vide order dated 9th Aug. Thus, the plaintiff sought to incorporate the plea of res judicata. However, the same was disallowed vide detailed order dated 6th May, 1977 of Chadha, J. Thereafter, the plaintiff was allowed to proceed with the remaining rebuttal evidence vide order dated 9th Aug. , 1977 of R. N. Aggarwal, J. It would, however, appear that when it was about to conclude the plaintiff moved an application under 0. 18, R. 17-A read with S. 151, Code of Civil Procedure (hereinafter referred to as the Code), (I. A. 3223/79) for permission to lead additional evidence in affirmative. However, the same was turned down vide order dated 6th Nov. , 1979 of Goswamy, J. Not deterred by the same, the plaintiff moved an application, being I. A. 3673/79, for review of the said order. However, he met with no success. ( 4 ) WHILE these proceedings were still going on Smt. Leila Devi Dewan defendant No. 5 expired on 20th Dec. , 1977, but no application was moved by the plaintiff within time to bring her legal representatives on the record. However, he has now moved I. A. No. 3917/79 dated llth Dec. , 1979, purporting to be under 0. 22, Rr. 2 and 4 read with S. 151 of the Code for permission to bring the legal representatives, viz. , two sons, two daughters and husband of the deceased defendant No. 5 on the record. In the alternative he has prayed for exemption from the necessity of substituting the legal representatives of defendant No. 5 under sub-rule (4) of O. 22, R. 4 on the ground that she had failed to appear and contest the suit at the subsequent hearings even though she did file written statements dated 30th Jan. , 1962 and 16th Feb. , 1963, jointly with defendant No. 6 controverting the claim of the plaintiff. The plaintiff has further pointed out that defendant No. 5 or for that matter defendant No. 6 did not file any written statement to his second amended plaint dated 23rd Mar. , 1968, which indicates that she was not at all interested in contesting the suit. , 1963, jointly with defendant No. 6 controverting the claim of the plaintiff. The plaintiff has further pointed out that defendant No. 5 or for that matter defendant No. 6 did not file any written statement to his second amended plaint dated 23rd Mar. , 1968, which indicates that she was not at all interested in contesting the suit. He has urged that Smt. Leila Devi Dewan had no right or interest in the property in question or the property claimed by her in her written statements which she had filed at the behest of defendants 1 and 2, who are the real accounting party and contesting defendants. Thus, according to him, defendant No. 5 was just a pro forma defendant having no right or interest in the property in dispute. ( 5 ) ON the other hand defendants 1 and 2 have moved I. A. 1440/80 to the effect that the suit having abated automatically for want of substitution of the legal heirs of deceased defendant No. 5 within time and she being a necessary party to the suit, appropriate orders with regard to the suit having abated as a whole be passed especially when no application seeking to set aside the abatement has been made so far. It is, inter alia, pointed out that the aforesaid application, i. e. I. A. 3917/79 had been dismissed in default on llth Apr. , 1980 and as such there was no subsisting application for bringing the legal representatives of the deceased defendant No. 5 on the record. However, a perusal of the record shows that on the application of the plaintiff for restoration of L A. 3917/79 and some other I. As. (being I. A. 1441/80), the same were restored vide order dated 24th July, 1980. Consequently, I have heard the. learned counsel for the parties including counsel for the legal representatives of deceased defendant No. 5 with regard to I. A. 3917/79. ( 6 ) THE first and the foremost question for consideration is whether sub-rule (4) of O. 22, R. 4, which empowers the Court to exempt the plaintiff from the necessity of substituting the legal representatives of a non-contesting defendant, can be invoked at this stage. It bears repetition that no application was made either for bringing the legal representatives of deceased defendant on the record or for setting aside the abatement within time prescribed under law. It bears repetition that no application was made either for bringing the legal representatives of deceased defendant on the record or for setting aside the abatement within time prescribed under law. The contention of Mr. Roshan, the learned counsel for defendants 1 and 2, therefore, is that sub-rule (4) cannot be invoked by the plaintiff once abatement has set in inasmuch as no suit is pending before the Court and as such it is not competent to pass any order on this application. It is urged that the abatement of the suit is automatic by operation of law as embodied in sub-rule (3) of 0. 22, R. 4 and no formal order of abatement need at all be passed by the Court. Reliance has been placed by him in support of this contention on Nani Gopal Mukherji v. Panchanan Mukherji, (1955) 59 Cal WN 304 and Lakshmi Charan Panda v, Satyabadi Behera, AIR 1964 Orissa 39, in support of his contention. On the contrary, the submission made by the learned counsel for the plaintiff is that the language of sub- rule (4) is of wide amplitude and it does not admit of any such limitation. In other words, according to him, the exemption can be made at any time before judgment is passed and the judgment so delivered will be as effective as it would have been, if it had been passed when the defendant was alive. In this context he has adverted to reported decisions of several High Courts, viz. , Velappan Pillai v. Parappan Panickar, AIR 1969 Mad 309 , S. A. Rahim v. V. Rajamma, AIR 1977 Kar 20 , Nepal Chandra Saha v. Rebati Mohan Saha, AIR 1979 Gauhati 1, and Rajnath Sahgal v. Shiva Prasad Sinha, AIR 1979 Pat 239 (DB) which lend support to the argument advanced by the plaintiff s counsel. ( 7 ) IT may be pertient to mention here that sub-rule (4) has been inserted by the Code of Civil Procedure (Amendment) Act (104 of 1976) and it has come into force with effect from 1st Feb. , 1977. However, before this amendment similar amendments had already been made by various High Courts, namely, High Courts of Assam, Andhra Pradesh, Calcutta, Madras, Karnataka and Orissa in R. 4 of O. 22. , 1977. However, before this amendment similar amendments had already been made by various High Courts, namely, High Courts of Assam, Andhra Pradesh, Calcutta, Madras, Karnataka and Orissa in R. 4 of O. 22. Since (here is a sharp divergence of judicial opinion as to the stage when the discretion vesting in the Court under sub-rule (4) to exempt the plaintiff from the necessity of substituting the legal representatives of a non-contesting defendant can be exercised, it becomes imperative to dwell on the subject a little elaborately. Sub- rules (3) and (4) of 0. 22, R. 4 which bear on the point in issue are set out below far ready reference: (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. (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. " ( 8 ) ON a plain reading of sub-rule (3), which is imperative in nature, there can be no doubt and indeed it is well settled that the abatement takes place automatically and no separate order therefor is necessary. That being so, the suit, so to speak, is dead or at an end and a decree passed in the face of such abatement will be a nullity so far as the legal representatives of the deceased defendant are concerned. Further, it may entail the dismissal of the suit as a whole if (he absence of the legal representatives of the deceased from the record renders it impossible to proceed with the suit. Such a contingency may arise from the suit becoming imperfectly constituted for want of necessary or essential party i. e. from the fact that the action cannot proceed against the surviving defendants alone in the absence of legal representatives of the deceased defendant. Such a contingency may arise from the suit becoming imperfectly constituted for want of necessary or essential party i. e. from the fact that the action cannot proceed against the surviving defendants alone in the absence of legal representatives of the deceased defendant. Anyhow, the crucial question for consideration is whether the Court is competent to exempt the plaintiff from the necessity of substituting legal representatives of the deceased defendant notwithstanding the abatement which, as stated above, has automatically set in. ( 9 ) IN Nani Gopal Mukherji (1955-59 Cal WN 304) (Supra), a Division Bench of Calcutta High Court, on a juxtaposition of sub-rules (3) and (4) as amended by that High Court, observed that: "the position clearly is that (1) where within the time limited by law an application for substitution has been made, the suit does not abate; (2) where no such application has been made within the time limited by law, the suit shall ordinarily abate; and (3) but this will be subject to the exception that in certain cases the Court may exempt the plaintiff from substituting the legal representatives. " ( 10 ) THEIR Lordships also quoted with approval the following observation of Chakravartti, J. in Sankari Prasad Singh Deo v. Kanai Lal Roy, (1948) 52 Cal WN 599: "the sub-rules are addressed not to the setting aside of an abatement but to its prevention. Sub-rule (3) says that the suit shall abate if no application for substitution is made within the time limited by law, when it proceeds to state "except as hereinafter provided", it only adds another exception and that exception is to be found in sub-rule (4) which may be summarised as if the Court does not grant exception from making substitution. "the effect of the two sub-rules read together appears to be that upon the death of a defendant, the suit "shall abate", unless an application for substitution is made in due time or unless the Court exempts the plaintiff from substituting the legal representatives of the deceased party. Both the exceptions thus refer to circumstances which will avert an abatement or prevent it from occurring and so must be earlier in time. ( 11 ) IT is noteworthy that sub-rule (3), as amended by Calcutta High Court, stands thus: " (3 ). Both the exceptions thus refer to circumstances which will avert an abatement or prevent it from occurring and so must be earlier in time. ( 11 ) IT is noteworthy that sub-rule (3), as amended by Calcutta High Court, stands thus: " (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, except as hereinafter provided. " (emphasis supplied) ( 12 ) IT was argued that the effect of the words "except as hereinafter provided" which occur at the end of sub-rule (3) is that when an exemption is given the abatement will necessarily not take place. However, this contention was repelled with the observation that it overlooks the sequence of events as contemplated in the rules. Evidently the Calcutta High Court hastreated sub-rule (4) to be in the nature of an exception to sub- rule (3) while observing that: "both the exceptions thus refer to circumstances which will avert an abatement or prevent it from occurring and so must be earlier in time. " ( 13 ) THE judgment of the Orissa High Court in Lakshmi Charan Panda (AIR 1964 Orissa 39) (supra) is virtually based on this authority. However, the learned Judge, G. K. Misra, J. assigned the following reason for coming to the conclusion that once abatement takes place, the discretion given to the Court to invoke the provisions of sub-rule (4) cannot be exercised: "the words "whenever the Court thinks fit" in the context must mean when the Court thinks fit within 90 days from the date of death and before abatement takes place. Within the period of 90 days, two courses are open to the appellants either to file an application for substitution or to file an application praying for invoking the Court s power for exempting them from the necessity of substituting the legal representatives of the deceased respondent 9 if the conditions are otherwise fulfilled. This is the reason why the sub-rule has been incorporated in 0. 22, R. 4 and not under 0. 22, R. 9 which lays down the effect of abatement. " ( 14 ) WITH respect I am not persuaded to agree with this line of argument. This is the reason why the sub-rule has been incorporated in 0. 22, R. 4 and not under 0. 22, R. 9 which lays down the effect of abatement. " ( 14 ) WITH respect I am not persuaded to agree with this line of argument. It is for the simple reason that non-insertion of sub- rule (4) in Rule 9 of Order 22 and its inclusion in Rule 4 is not per se suggestive of the conclusion that the application for exemption from the necessity of substituting legal representatives must be made before the abatement sets in. As shall be presently seen, sub-rule (4) can be invoked by the Court at any stage before the judgment is delivered and the discretion vesting in the Court under it is not fettered by the circumstances of abatement of the suit. Indeed, the very purpose of sub-rule (4) is defeated if the plaintiff is in. an eventuality like the present is called Upon first to get the abatement set aside. ( 15 ) SIGNIFICANTLY the words "except as hereinafter provided", as amended by the Calcutta High Court, also exist at the end of sub-rule (3), as amended by Madras High Court. Nonetheless the latter High Court has placed a diametrically opposite interpretation on the same. This is what their Lordships said in this context: "abatement on death is specifically provided for under Rr. 3 and 4. Sub-rules (3) and (4) of Rule 4 must be read together. Sub-rule (3) will not operate in cases where an order under sub-rule (4) is made. Statutorily the automatic operation of sub-r. (3) is taken away when an exemption is granted under sub-rule (4 ). This is because sub- rule (3) itself provides sub-rule (4) as its exception and full effect has to be given to the exception. " ( 16 ) SINCE the words "except as hereinafter provided" have not been suffixed to sub- rule (3) of O. 22, R. 4 despite amendment made therein by the Amending Act of 1976, I need not dwell upon the impact which the said words may have on the operation of sub-rule (4 ). Indeed, it will be an exercise in futility to analyse as to whether sub-rule (4) constitutes an exception to sub-rule (3) and if so, which of the two conflicting views adverted to above should be followed. Indeed, it will be an exercise in futility to analyse as to whether sub-rule (4) constitutes an exception to sub-rule (3) and if so, which of the two conflicting views adverted to above should be followed. As sub- rules (3) and (4) stand I do not think there is anything therein to warrant the conclusion that sub-rule (4) is in any manner controlled by sub-rule (3 ). The words "whenever it thinks fit" occurring at the beginning of sub- nils (4) are comprehensive enough to take within its sweep any stage of the suit for exercise of the discretion vesting in the Court under it till, of course, the judgment is delivered and there is no apparent reason to limit or curtail the scope of these words. It is a cardinal rule of construction of statutes that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous then no more can be necessary than to expound those words in their ordinary and natural sense. The golden rule of construction as enunciated by Lord Wensleydale is that in constructing wills, and indeed statutes and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency, but no further. (See Craies on Statute Law, 7th Edition at pages 84-85 ). The expression "when" means " (a) at what time, (b) on what occasion or under what circumstances, (c) at what point" and the expression whenever is an intensified form of when and is used for emphasis. It ordinarily means at whatever time, on whatever occasion . (See Webster s New World Dictionary ). Similarly, according to Chambers Twentieth Century Dictionary the word whenever means at every time when . In Stroud s Judicial Dictionary (4th Edition, Vol. V) the meaning of the word whenever is brought out thus : "but "whenever it appears" to the county council that a house or room for dancing, music, or such like, "is so defective in its structure" as to be in danger from fire (S. 11, Metropolis Management Act 1878 (41 and 42 Vict. V) the meaning of the word whenever is brought out thus : "but "whenever it appears" to the county council that a house or room for dancing, music, or such like, "is so defective in its structure" as to be in danger from fire (S. 11, Metropolis Management Act 1878 (41 and 42 Vict. , c. 32)) did not mean "so often as" but meant that at "whatever time it so appears". " ( 17 ) EVIDENTLY language of this sub-rule is clear and explicit and we must give effect to it whatever may be the consequences especially because there is nothing either in the language of this sub-rule (3) or sub-rule (4) which would not permit full play of this expression. As observed by the Madras High Court in Velappan Pillai v. Parappan Panickar, AIR 1969 Mad 309 (supra) (at p. 314): "but why limit the scope of the words ? If it was not intended to permit exemption at any time, these words whenever it seems fit in sub-clause (4) could well have been omitted the discretion being left with the Court to exempt the plaintiff with the necessity of substitution according to the circumstances. The words may exempt themselves import the need for exercise of judicial discretion. The amendment of O. XXII by the addition of words to sub-rule (3) and the insertion of the new sub-rule (4) was pursuant to the recommendation of the Civil Justices Committee. The Civil Justices Committee had recommended that after the trial had commenced it should be open to the Court to absolve the plaintiff from the necessity to substitute the representative of the defendant who did not in his lifetime file a written statement, or who having done so did not appear to contest at the hearing. It was considered as device to avoid useless substitution of representatives on the death of a party. "( 18 ) HAVING regard to the fact that this new sub-rule has been added for exempting the substitution of the legal representatives of a non-contesting defendant in order to avoid delay which normally occurs in the substitution of the legal representatives of the deceased defendant and consequently delay in the disposal of the suit, there will be hardly any justification to restrict its scope and operation only to the time before abatement of the suit by importing therein something which does not exist there. In other words, sub-rule (4) is quite independent of and untrammelled by the effect of sub-rule (3) and the Court can exercise the discretion conferred upon it by sub-rule (4) irrespective of and notwithstanding abatement having set in so long as the judgment is not delivered. If any other interpretation were to be put it will stultify even the deeming provision embodied therein, viz. , that the judgment made in such cases be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it had been pronounced before the death took place. ( 19 ) EVIDENTLY the pronouncement of judgment in a case where the plaintiff has been exempted from the necessity of substituting the legal representatives of the deceased defendant will not be in any manner affected by abatement and by legal fiction it will be assumed that the judgment has been pronounced before his death took place. This is an additional reason assigned by V. S. Malimath, J. in S. A. Rahim v. Rajamma (AIR 1977. Kant 20) (supra) and I fully subscribe to the view taken by him. This is what the learned Judge says (at p. 21) : "when such judgment is pronounced, sub- rule (4) expressly provides that it shall have the same force and effect as if it had been pronounced before the death took place. In other words, a legal fiction is introduced to the effect that though the judgment is pronounced after the death of the deceased defendant, the same shall be deemed to have been pronounced before his death. It, therefore, follows that when a judgment is pronounced in a suit against the deceased defendant after according necessary exemption under sub-rule (4) no abatement as such shall be deemed to have taken effect. As the judgment itself is deemed to have been pronounced during the lifetime of the deceased defendant, it is obvious that abatement shall not be deemed to have taken effect. " ( 20 ) THE view taken above is further countenanced by S. 97 (2) (r) of the Amending Act 104 of 1976 which incorporates repeal and savings. Sub-section (2) clause (r) runs as follows: "97 (1) xx xx xx. " ( 20 ) THE view taken above is further countenanced by S. 97 (2) (r) of the Amending Act 104 of 1976 which incorporates repeal and savings. Sub-section (2) clause (r) runs as follows: "97 (1) xx xx xx. (2) Notwithstanding that the provisions of this Act have come into force or the repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of S. 6 of the General Clauses Act, 1897 XX XX XX (r) the provisions of R. 4 of 0. XXII of the First Schedule, as substituted by S. 73 of this Act, shall not apply to any order of abatement made before the commencement of the said S. 73. " ( 21 ) HENCE, the only limitation put in giving effect to sub-rule (4) is that if an order of abatement has already been recorded by the Judge in. a case then the provision of sub- rule (4) will not be applicable. In the instant case, the death of defendant No. 5 took place subsequent to the coming into force of the Amending Act. Hence, the restriction placed in Cl. (r) above will not apply to the instant case. In other words, the Court can permit exemption even after the abatement has set in. In Rajnath Sahgal ( AIR 1979 Pat 239 ) (supra) the concerned defendant had died in 1975 and the application was moved under sub-rule (4) much after the abatement had set in. Adverting to Section-97 (2) (r), B. P. Jha, J. made the following observations (at p. 241): "in my opinion the legislature has put two conditions while applying the provisions of O. 22, R. 4 (4), and they are (1) that the provision will apply in a case where a defendant has failed to file a written statement, or he having filed it, has failed to appear and contest, the suit at the hearing, (2) that this provision will apply where no order of abatement has been recorded in the case. If the abatement order has been recorded by the Court, then the provisions of O. 22, , R. 4 (4) shall not apply. If the aforesaid conditions are fulfilled, the Court can apply provisions of 0. 22, R. 4 (4) at any time before delivery of judgment. If the abatement order has been recorded by the Court, then the provisions of O. 22, , R. 4 (4) shall not apply. If the aforesaid conditions are fulfilled, the Court can apply provisions of 0. 22, R. 4 (4) at any time before delivery of judgment. " ( 22 ) THE reasoning to my mind is perfectly in accordance with the plain language of Section 97 (2) (r) and I respectfully adopt the same. Pertinently his Lordship assigned yet another reason in support of the view that the stage for dispensing with the substitution need not necessarily be before the abatement fakes place. It is stated thus: "while setting aside the abatement order, the Court is entitled to pass the order under sub-rule (4) of 0. 22, R. 4 of the Civil P. C. If the Court can set aside the abatement order, the Court has authority in law to set aside the order of abatement after condoning the delay. This aspect of the matter was not at all examined by those two decisions. Shri K. D. Chatterji, appearing on behalf of the the petitioners, concedes that the Court can dispense with the substitution after setting aside abatement. In this view of the matter also, we are unable to accept the correctness of the decisions of the Calcutta and Orissa Highcourts. " ( 23 ) FOR the foregoing reasons which find support from the aforesaid judgments of Madras, Karnataka and Patna High Courts, I most respectfully disagree with the view taken by the Calcutta and Orissa High Courts. Hence, 11 feel inclined to take the view that the amendment has liberalised the provisions contained: in R. 4 of 0. 22 to a very large extent in the case of dormant defendants and sub-rule (4) is intended to apply to all such cases where even the deemed abatement has taken place provided, of course the other conditions laid in sub-rule (4) are duly satisfied. ( 24 ) THIS brings me to an examination of the facts of the instant case on merits. As stated above, the deceased defendant filed two written statements along with defendant No. 6 the first written statement dated 30th January, 1962, was in answer to the original plaint while second written statement was in reply to the first amended plaint. ( 24 ) THIS brings me to an examination of the facts of the instant case on merits. As stated above, the deceased defendant filed two written statements along with defendant No. 6 the first written statement dated 30th January, 1962, was in answer to the original plaint while second written statement was in reply to the first amended plaint. However, no written statement seems to have been filed by the defendants to the second amended plaint. It may well be on account of the fact that the second amended plaint was virtually the same in essence. Anyhow, a perusal of both the written statements would show that defendants 5 and 6 controverted the averments made by the plaintiff in the plaint, original as well as amended. Defendant No. 5 specifically averred that out of the shares lying with defendant No. 8, viz. , Allahabad Bank Limited, 58 shares of Bengal Chemical and Pharmaceutical Works valued at about Rs. 6,000. 00 and 400 shares of Travancore Rubber and Tea Co. Ltd. valued at about Rs. 3,500. 00 stood in the name of the deceased Smt. Chanan Devi and herself or the survivor in the case of death of any. Consequently on the death of Smt. Chanan Devi, she i. e. defendant No. 5 was the owner of the said shares and no other person had any right or interest therein. Identical assertion was made by defendant No. 6 with respect to five shares of Laxmi Sugar and Oil Mills Limited valued at about Rs. 9,000. 00 which stood in the joint name of deceased Smt. Chanan Devi and defendant No. 6. Thus, according to both these defendants, the plaintiff or any other person has got no interest or right in the shares mentioned above which exclusively belonged to these defendants. However, in the concluding para of the written statement these defendants made a prayer that in case this Court held that the property or the assets left by Smt. Chanan Devi be partitioned, they be awarded they share in the same in accordance with law excepting however the shares mentioned above. Under sub-rule (4) the Court can exempt the plaintiff from the necessity of substituting the legal representatives of any deceased defendant, (a) who has failed to file a written statement or (b) who having filed it has failedto appear and contest the suit at the hearing. Under sub-rule (4) the Court can exempt the plaintiff from the necessity of substituting the legal representatives of any deceased defendant, (a) who has failed to file a written statement or (b) who having filed it has failedto appear and contest the suit at the hearing. Evidently the first limb of this sub-rule is not attracted to the facts of the instant case. No doubt the deceased defendant or for that matter any of the defendants did not file any written statement to the second amended plaint but that is hardly of any consequence inasmuch as the material assertions made by the plaintiff have been stoutly refuted by all of them. So, the only question which remains for consideration is whether defendant No. 5 had failed to appear and contest the suit at the hearing. ( 25 ) A perusal of the record shows that defendants 5 and 6 made an application dated 23rd Apr. , 1962, through their counsel Shri Ishwar Chancier Jain for a direction to defendant No. 8 to deliver the aforesaid shares to them because the said shares were property of defendants 5 and 6 and neither the plaintiff nor any defendant had any right or interest therein. It appears that the said application remained pending for a fairly long time and it was only on 1st Feb. , 1965 that due notice was taken thereof. On that day the plaintiff made a statement that he had no objection to the aforesaid shares being released to defendants 5 and 6 provided defendants 1 and 2 gave an undertaking that they would compensate the plaintiff if the share of defendants 5 and 6 worked out to less than the amount of the shares to be released or if it was found that defendant 5 and 6 had no share at all in the properties in question. Upon this statement being made, defendants 1 and 2 gave the necessary undertaking and the learned Sub-Judge in whose Court the suit was then pending made an order directing defendant No. 8 to release the above mentioned shares to defendants 5 and 6. He further observed that defendants 1 and 2 shall be bound by the undertaking given by them. Upon this statement being made, defendants 1 and 2 gave the necessary undertaking and the learned Sub-Judge in whose Court the suit was then pending made an order directing defendant No. 8 to release the above mentioned shares to defendants 5 and 6. He further observed that defendants 1 and 2 shall be bound by the undertaking given by them. In view of this development, therefore, there can be no room for doubt that defendants 1 and 2 are the real contesting defendants and they are vitally interested even in safeguarding the interests of defendants 5 and 6, although there can be no two opinions that in a suit for partition by joint owners all the co-sharers are necessary parties and the suit cannot proceed in the absence of anyone of them. A feeble attempt has been made by the learned counsel for the plaintiff to urge even that the deceased defendant had no right or interest in the property in question which in fact belonged to late Col. M. L. Puri who died much before coming into force of the Hindu Succession Act. However, this facile argument is completely shattered if regard is had to the pleadings of the plaintiff in the original plaint as well as in the first amended plaint. In the former, the case propounded was that the properties in question belonged to Smt. Chanan Devi, deceased mother of the plaintiff and as such he was entitled to l/7th share therein. However, in the first amended plaint he shifted ground and took up the stand that the proprietary right in the moneys and securities in dispute was that of Col. Puri only. Even then he apparently conceded the right of the daughters of the deceased to inheritance in the estate of their deceased mother and that is why he claimed 8/35th share in the properties in dispute. Thus, it is only in the second amended plaint that he has claimed l/4th share in the assets of his father and mother to the exclusion of the daughters of the deceased. Thus, there can be no shadow of doubt that the daughters of the deceased Col. Puri and his widow Smt. Chanan Devi are necessary parties to this suit for adjudication of the right and interest of the plaintiff in the estate of the deceased. Thus, there can be no shadow of doubt that the daughters of the deceased Col. Puri and his widow Smt. Chanan Devi are necessary parties to this suit for adjudication of the right and interest of the plaintiff in the estate of the deceased. It is on this premise that the learned counsel for the defendants has strenuously urged that exemption from the necessity of substituting the legal representatives of the deceased defendant be not granted. However, as observed by me earlier this aspect of the matter is hardly germane to the exercise of discretion vesting in the Court under sub-rule (4) and all that is to be seen is whether defendant No. 5 failed to appear and contest the suit after filing the written statement. The crux of the problem, therefore, is whether the deceased defendant was a non-contesting defendant and whether having regard to her overall conduct in the suit the necessity for substitution of her legal representatives can be dispensed with. ( 26 ) THE basic principle underlying O. 22, Rr. 3 and 4 is indisputably a facet of natural justice or a limb of audi alteram partem rule. The first limb of this rule audi alteram partem requires that a person must be given an opportunity of being heard before a decision one way or the other affecting him is recorded. As a corollary to this rule it is provided in the Code of Civil Procedure that where a party to the proceeding dies pending the proceeding and the cause of action survives, the legal representatives of the deceased party should be brought on record which only means that such legal representatives must be afforded an opportunity of being heard before any liability is fastened upon them. (Per Desai, J. in N. Jayaram Reddi v. Revenue Divisional Officer and Land Acquisition Officer, Kurnool, AIR 1979 SC 1393 ). As already seen the position in the instant case is that the rights and interests of defendants 1 and 2 who are the real contesting persons are identical with the rights and interests, if any, of the deceased-defendant and in view of the undertaking given by them they are bound to protect the interest of the deceased. Even otherwise it would appear that subsequent to the aforesaid order dated 1st Feb. , 1965, defendants 5 and 6 did not participate in the proceedings including recording of evidence. Even otherwise it would appear that subsequent to the aforesaid order dated 1st Feb. , 1965, defendants 5 and 6 did not participate in the proceedings including recording of evidence. No doubt on various dates of hearing, presence of counsel for the parties has been recorded but there is no indication that counsel few defendants 5 and 6 as such ever entered appearance subsequent to 1st Feb. , 1965. It is pertinent to note that evidence of the plaintiff in affirmative concluded on 25th Apr. , 1968 and that of the defendants concluded in 1st Aug. , 1969. Significantly however, there is nothing on the record to suggest either that defendants 5 and 6 actively participated in cross- examining the plaintiffs witnesses or that they adduced any evidence on their own behalf to substantiate their claim to the exclusive ownership of the aforesaid shares. It would no doubt appear that subsequent thereto Shri G. T. Gajaria, counsel for defendants 5 to 7 entered appearance on 16th Sep. , 1970 as well as 3rd Oct. , 1970 and made a statement to the effect that he had no objection to the appointment of Shri Bhim Sen Sachar as a sole referee to settle the dispute between the parties. But this circumstance in itself is hardly of any assistance to the defendants 5 and 6 at any stage. After the transfer of the suit to the High Court in 1973, an order was made that notice be issued to counsel for the defendants other than defendants 1 and 2 who was present in Court on 24th May, 1973. Service was duly effected on both Shri G. T. Gajaria as well as Shri Iswar Chander Jain who had been representing defendants 5 to 7 although the Deputy Registrar noted in his order dated 26th July, 1973 that Shri G. T. Gajaria, counsel for defendant No. 7 had been duly served but was absent. Still later Smt. Leila Devi-defendant No. 5 had been served for the date 19th Feb. , 1976, but there was no appearance on her behalf. Under the circumstances, there is no escape from the conclusion that defendant No. 5 was least interested in contesting the suit after the release of the shares in her favour by defendant No. 8 as per order dated 1st Feb. , 1965 (supra ). , 1976, but there was no appearance on her behalf. Under the circumstances, there is no escape from the conclusion that defendant No. 5 was least interested in contesting the suit after the release of the shares in her favour by defendant No. 8 as per order dated 1st Feb. , 1965 (supra ). It may be pertinent to add here that some interim applications were also disposed of by Chadha, J. before the death of defendant No. 5 (e. g. Order dated 6th May, 1977, vide which I. A. 1552/76 under O. VI, R. 17 for amendment of the plaint was disposed of ). Hence, there is no shadow of doubt that defendant No. 5, having filed the written statement, failed to appear and contest the suit at the hearing. The expression hearing in the context of sub-rule (4) will connote hearing of the suit as a whole and not any particular date of hearing subsequent to the filing of the written statement. Having regard to the caption of O. XVIII, Civil Procedure Code it will include recording of evidence as well as hearing of arguments. It will be fairly safe to assume in a case like the present where there are several defendants whose interests are common and almost identical and some of them contest while others do not, that the defence of the suit has been left in the hands of defendants 1 and 2. The object of sub-rule (4), being to avoid useless substitution of the legal representatives on the death of a non-contesting party, it appears to be a fit case for exercising the discretion in favour of the plaintiff and exempt him, from the necessity of substituting the legal representatives of the deceased defendant. Order accordingly in I. A. No. 3917/79. ( 27 ) I. A. 1440/80 In view of my foregoing order in I. A. 3917/79, the question of abatement of the suit does not arise at all and this application is dismissed as having become infructuous. ( 28 ) I. A. 1319/80 Since I. A. 3917/79 stands disposed of, this application too becomes infructuous. It is accordingly disposed of.