V. K. GUPTA, J. ( 1 ) -THIS appeal by a set of 33 defendants, Dr. C. C. Dey arraigned as appellant No. 1, having died during the pendency of the suit itself, is against the Judgment and Decree dated 13th October, 1998 passed by the learned 6th court of Assistant District Judge, Alipore in Title Suit No. 12 of 1986. The appellants Nos 2 to 33 in this appeal were the substituted defendants under Order 22 Rule 10 CPC, as would appear hereinbelow as we unfold the factual matrix of the case. ( 2 ) THE plaintiff, the sole respondent in this appeal filed the suit in the court below in respect of a piece of land measuring 10 bighas 4 cottahs and 7 chittacks and 37 Sft. situated at No. 115 Raja Ram Mohan Lane, P. S. Behala. The Plaintiff's case was that on 13. 12. 1982 an agreement was executed between him and the sole defendant in the Suit Dr. C. C. Dey whereby the defendant agreed to sell the property to the plaintiff on a consideration of Rs. 6. 00 lacs. The plaintiffs paid to the defendant pursuant to the aforesaid agreement an amount of Rs. 25,000/- initially by way of Cheque and subsequently another amount of Rs. 10,000/- again by Cheque, both these Cheques having been encashed by the defendant. The defendant thus received Rs. 35,000/- as advance from the plaintiff but since he did not execute the Sale Deed despite stipulation in the Agreement dated 13/12/82, the Plaintiff had no option but to file the Suit. The sole defendant Dr. C. C. Dey contested the Suit. He inter alia pleaded that even though he had the intention to enter into an agreement with the Plaintiff but the plaintiff practised fraud upon the defendant. The defendant relied upon one S. N. Banerjee, an Advocate who acted as his middleman and that because of the fraud practised by the plaintiff the aforesaid agreement dated 13. 12. 82 was got executed fraudulently. The defendant also pleaded some supervening and intervening circumstances, including the trespassing of the land by some outsiders. He also averred in the written statement that he had sold the suit property to several persons during the pendency of the Suit on "as is where is basis". 12. 82 was got executed fraudulently. The defendant also pleaded some supervening and intervening circumstances, including the trespassing of the land by some outsiders. He also averred in the written statement that he had sold the suit property to several persons during the pendency of the Suit on "as is where is basis". ( 3 ) BASED upon the pleadings of the parties, the trial court vide Order dated 5-06-86 framed the following six issues for trial: (1)is the suit maintainable in law? (2)did the defendant entered into an agreement for sale of the suit property in favour of the plaintiff upon a written agreement dated October 13, 1982, for a consideration sum of Rs. 6 lakhs? (3)did the defendant receive earnest money from the plaintiff in pursuance to the agreement for sale? (4)has the plaintiff been ready and willing to perform his part of the contract? (5)is the plaintiff entitled to a decree for Specific Performance of contract? (6)to what relief, if any, is the plaintiff entitled? ( 4 ) HOWEVER vide Order dated 26. 08. 82 2 additional issues were framed, in all there being 8 issues for trial. All the 8 issues including the 2 additional issues framed are a under :- (1)is the suit maintainable in its present form and in law? (2)did the original deft. enter into an agreement for the sale of the suit property to the plff. On the basis of a written agreement dated 13. 10. 82 for a consideration of Rs. 6 lakhs? (3)did the original deft. receive any earnest money from the plff. on the basis of an agreement for sale of the suit property? (4)was the deed of agreement obtained fraudulently by the plff. in collusion with S. N. Banerjee beyond the knowledge of the original deft. as alleged? (5)has the contract become unenforceable due to the supervening impossibility? (6)was the plff. ready and willing to perform his part of the contract? (7)is the plff. entitled to have the contract specifically performed? (8)to what other relief or reliefs, if any, is the plff. entitled? ( 5 ) DURING the pendency the suit took as interesting turn. The sole defendant Dr. C. C. Dey died on 9th December 1987. (6)was the plff. ready and willing to perform his part of the contract? (7)is the plff. entitled to have the contract specifically performed? (8)to what other relief or reliefs, if any, is the plff. entitled? ( 5 ) DURING the pendency the suit took as interesting turn. The sole defendant Dr. C. C. Dey died on 9th December 1987. Inter-locutory order No. 7 dated 8th March, 1988 passed by the court below reveals that two applications came to be filed during the pendency of the suit, but after the death of the sole defendant. One was filed by the sole plaintiff in terms of Order 22 Rule 4 CPC praying for substitution of the L. R. 's of the deceased defendant and the other was filed by a set of persons, hitherto not parties in the suit, in terms of Order 1 Rule 10 (2) read with Order 22 Rule 10 along with section 151 of CPC for their substitution in place of the deceased defendant on the ground that they had purchased the suit property from the sole defendant Dr. C. C. Dey on 6. 9. 85. Vide Order passed on 21st July 88, whereas the application filed by the plaintiff under Order 22 Rule 4 CPC for substituting the legal representatives of the deceased defendant was rejected, the application filed by the purchasers of the property from the sole defendant under Order 22 Rule 6 read with Order 1 rule. 10 (2) CPC was allowed by holding that these persons were required to be given an opportunity to be added as defendants in the suit in place of the deceased defendant. This Order really makes a very interesting reading. We reproduce the Order dated 21. 7. 88 in its entirety. "21. 7. 88. ON behalf of the plaintiff the learned lawyer for his side is present by filing his hazira. The learned lawyer for the petitioner, Mrs. Suraj Devi Daga and 31 others, is present by filing his hazira. The two petitions dated 25. 11. 87 as filed by the petitioners under Order 1 Rule 10 (2) and U/o 22 Rule 10 Read with section 151 CPC and the petition dated 8. 1. 88 as filed by the plaintiff U/o 22 Rule 4 of the CPC are now taken up for hearing. Hd. the learned lawyers for both the sides. 11. 87 as filed by the petitioners under Order 1 Rule 10 (2) and U/o 22 Rule 10 Read with section 151 CPC and the petition dated 8. 1. 88 as filed by the plaintiff U/o 22 Rule 4 of the CPC are now taken up for hearing. Hd. the learned lawyers for both the sides. On a careful perusal of the contents of the petition as filed by the petitioners, I find that the petitioners purchased the existing right of the deceased defendant C. C. Dey, in the suit property by registered deed of conveyance dated 6. 9. 85 during the pendency of the instant suit. This fact was not within the knowledge of the present plaintiff and this has now been clearly admitted by the learned lawyer for the plaintiff. Now, when I find that the present petitioners claim right in the disputed property by way of their purchase, they should be given an opportunity to being added as defdts. in the instant suit in place of the deceased defdt. Their addition as defendants in the present suit also seems to be essentially needed for the purpose of avoiding future complications and multiplicity of suits. In fact, the learned lawyer for the plaintiff has not also opposed the prayer of the present petitioners. In the premises, I allow the prayer of the present petitioners and order that they be added as defendants in the present suit. Let the name of original defendant C. C. Dey, be expunged. It is needless to mention here that the present petitioners who have been impleaded as defendants in the suit will have no right to raising any defence not open to their transferror if there-be any such occasion, and they would be legally bound by all others passed till this day (AIR 1973 Punjab and Haryana-448 ). In the instant suit only one witness was examined by the plaintiff and agrument for his side was also heard in absence of the original deft. When he did not care to turn up before this court or adduce any evidence on being so asked by the court. The record shows that the suit was fixed on 23. 11. 87 for delivery of judgment. But no judgment could be passed as the original defendant brought the Misc. When he did not care to turn up before this court or adduce any evidence on being so asked by the court. The record shows that the suit was fixed on 23. 11. 87 for delivery of judgment. But no judgment could be passed as the original defendant brought the Misc. case No. 300/87 in the court of the learned District Judge, 24-Pgs, for getting the suit transferred to some other court. in this misc. case the learned District Judge has ordered that the suit should be proceeded as usual by dismissing the misc. case, in such view of the matter, I fix 11. 8. 88 for delivery of judgment in the present suit. The petition as filed by the plaintiff on 8. 1. 88 stands rejected as it does not deserve any separate consideration in the prevailing circumstances. " ( 6 ) AS the aforesaid order therefore suggested the suit was ultimately decreed by the court by declaring that the plaintiff was entitled to have a decree of Specific Performance of Contract with regard to the suit property based on the Agreement dated 13. 12. 82, that the plaintiff may deposit a sum of Rs. 5,65,000/- within 90 days and that upon such deposit being made, the defendants in the suit, undoubtedly the newly added defendants (and not the deceased defendants) shall execute and register a Sale Deed in favour of the plaintiff within 30 days, and so on and so forth. ( 7 ) WE find that the Judgment and Decree impugned in this appeal do suffer from serious errors of law and that the learned court below totally failed to take into account some patently binding provisions of law, ignoring the applicability of these provisions and the effect that these would have on the outcome of the suit. ( 8 ) THE first and foremost was the rejection of the plaintiff's application for substituting the legal representatives of the deceased defendant in terms of Order 22 Rule 4 CPC sub-Rule 1 of Rule reads as under :-"4. ( 8 ) THE first and foremost was the rejection of the plaintiff's application for substituting the legal representatives of the deceased defendant in terms of Order 22 Rule 4 CPC sub-Rule 1 of Rule reads as under :-"4. (1) Where one of two or more defendants dies and the right to sue 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 cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. " ( 9 ) A plain reading of sub-Rule (1) of Rule 4 clearly suggests that if and when an application is made for substitution of the legal representatives of a sole defendant who had died, it is obligatory upon the court to cause such legal representatives of such deceased defendant to be made parties in the suit and to proceed with suit thereafter. The expression used is "shall cause the legal representatives of the deceased defendant to be made a party and shall proceed in the suit. " Undoubtedly the only exception to Order 22 Rule 4 is contained in Rule 6 which says that a suit shall not abate merely by reason of the death of a sole defendant in the suit if the hearing of the suit has been concluded and the pronouncement of the Judgment has been reserved. The learned Advocate for the respondent actually sought to put reliance on Rule 6 to say that non-substitution of the L. R. 's of the deceased defendant was not fatal because the hearing of the case had been concluded and the judgment was reserved. We do not agree with the submission and for quite a few reasons. ( 10 ) FIRST of all, a long chain of Orders starting from 14. 09. 87 and culminating in the passing of the final Judgment on 13th October, 1988, clearly suggests that the hearing of the suit actually had not been concluded. While we are saying so we do take into account the Order passed on 11. 11. 87, 21. 11. 87, 23. 11. 87, 28. 03. 88 and 8. 03. 88. 09. 87 and culminating in the passing of the final Judgment on 13th October, 1988, clearly suggests that the hearing of the suit actually had not been concluded. While we are saying so we do take into account the Order passed on 11. 11. 87, 21. 11. 87, 23. 11. 87, 28. 03. 88 and 8. 03. 88. These orders would clearly suggest that the learned court below was under a mis-conception that the hearing of the Suit had been concluded. This apart, the mere fact that the plaintiff himself had filed an application for substitution under Order 22 Rule 4 would suggest that the plaintiff wanted the substitution of the L. R. 's of the sole deceased defendant and that the hearing had actually not been concluded. This, apart from the fact that vide Order dated 21. 07. 88 the learned court below had itself ordered the substitution of a new set of defendants on the ground that they had claimed to have purchased the property through a Conveyance dated 6. 09. 85 and that they were required to be given an opportunity of defending the suit, even though it was wrongly observed by the court below that they had no right to raise such defences which were not available to the deceased defendant. Actually if one goes through the Order dated 21. 7. 88 one finds that the learned court below did not itself reject the application under 0rder 22 Rule 4 on the ground that the hearing of the suit had been concluded and the Judgment was reserved. Unfortunately no reason was assigned for rejecting the prayer for substitution of LRs. Last but not the least is the most glaring aspect of the matter concerning rejection of the application under Order 22 Rule 4 CPC and that is with regard of the framing of the two additional issues. ( 11 ) AS has been noticed above, even though originally six issues were framed on 5. 06. 84, vide Order dated 26. 08. 88 the court framed two additional issued which were numbered as issues Nos. 4 and 5 and these read as under :-"4. WAS the Deed of agreement obtained fraudulently by the plaintiff in collusion with S. N. Banerjee beyond knowledge of the original defendant, as alleged? 5. 06. 84, vide Order dated 26. 08. 88 the court framed two additional issued which were numbered as issues Nos. 4 and 5 and these read as under :-"4. WAS the Deed of agreement obtained fraudulently by the plaintiff in collusion with S. N. Banerjee beyond knowledge of the original defendant, as alleged? 5. Has the contract become unenforceable due to supervening impossibility?" ( 12 ) THESE two issues were framed on 26. 08. 88. The sole defendant had died on 9th December 87. Application for substitution under Order 22 Rule 4 was first taken up for consideration on 8th March 88. It was rejected on 21. 07. 88. Is this chronology of events not enough to suggest that the hearing of the suit had not been concluded? Undoubtedly Order 14 Rule 5 CPC does give power to a court to amend the issues or framed additional issues at any time before passing a Decree on such terms as it thinks fit, and undoubtedly it was in the exercise of such power that the court had framed two additional issues on 26. 08. 88 but without fixing any terms on which these two issues were framed. Actually, we very strongly disapprove of the manner in which the court framed the two additional issues and its aftermath. There is nothing on record to show the circumstances, reasons and the grounds under which the two additional issues were framed by the court below. No order is available from the record which speaks out the mind of the court below with regard to the reasons for framing these two issues. From out of nowhere the court decided to frame these two issues and that two without fixing any terms. Then, after framing these two issues, the court straightway proceeded to pronounce Judgment on all the issues, including two newly framed issues without affording any opportunity to the parties to either adduce evidence on these two issues or to even address arguments. As the issues would themselves show the onus to prove them should have been with the deceased defendant and, since he had in the meantime died, it being personal to him, it devolved upon his legal representatives. As held by Their Lordships of the Supreme Court in AIR 1995 SC 945 , such matters are personal to a Vendor and subsequent purchasers cannot take these defences. As held by Their Lordships of the Supreme Court in AIR 1995 SC 945 , such matters are personal to a Vendor and subsequent purchasers cannot take these defences. ( 13 ) A Division Bench of this court in AIR 1976 Calcutta 377 has clearly held that in a case like this one the substitution of the legal representatives of a deceased Vendor is a mandatory requirement of law. ( 14 ) THERE is another vital aspect to the matter which cannot escape our attention. Even though vide Order dated 21. 07. 88 the court below permitted the appellants before us as being added as defendants in the suit, it restricted their right of defending the suit only on the basis of the written statement as was originally filed by the deceased defendant and that they were denied any right of raising any defence other than the aforesaid. This despite an observation in the same order that they should be given an opportunity of defending themselves. In the Order dated 11. 08. 88 the court clearly observed that the newly added defendants had no right of filling any separate written statement and that they were bound to adopt the written statement as originally was filed by the deceased defendant. Added to this is an incorrect observation made in the Judgment under appeal wherein the learned court below has observed that these added defendants were allowed to contest the suit even though hearing of the suit had been concluded earlier but they did not choose to contest the suit. We reproduce this observation as under :"these added defendants were also allowed to adopt the written statement as filed by the original defendant and to contest the suit, even though the hearing of the suit concluded earlier. But these added defendants did not choose to contest the suit. " ( 15 ) IT is indeed very strange to say on the one hand that they did not choose to contest the suit and, on the other, to reject their prayer for filing even written statement. But these added defendants did not choose to contest the suit. " ( 15 ) IT is indeed very strange to say on the one hand that they did not choose to contest the suit and, on the other, to reject their prayer for filing even written statement. ( 16 ) FOR the reasons stated above, we are convinced that the Judgment and Decree under appeal suffer from grave errors of law and that the learned court below grossly mis-directed itself by rejecting the application of the plaintiff for substituting the legal representatives of the deceased defendant and by refusing to allow the appellants before us to contest the suit on its merits. ( 17 ) FOR these reasons therefore, we set aside the Judgment and Decree impugned in this appeal and by allowing the appeal remand the case to the trial court for re-hearing and disposal according to law. ( 18 ) WE in particular set aside the Order dated 21. 07. 1988 whereby the plaintiff's application for substitution of L. R. 's of the deceased defendant was rejected. We also set aside partly this Order in so far as it restricts the right of the added defendants in defending the suit. We direct that the plaintiff's application for substitution shall be re-considered in the light of the observation made by us and appropriate orders passed thereon. We also direct that the newly added defendants (appellants before us) shall be allowed to file their written statement and contest the Suit on all such grounds as are available to them under Law. No order as to costs. P. K. Sen, J.-I agree. Appeal allowed.