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2001 DIGILAW 134 (KER)

Pappoo v. Marykutty Joseph

2001-02-28

K.A.MOHAMMED SHAFI

body2001
Judgment :- This C.R.R is filed by the 1st defendant in O.S. No. 382/1994 challenging the common order in LA. Nos. 3813/2000 and 3841/2000, dated 26th August 2000 passed by the Sub Court, Ernakulam. 2. LA. No. 3813/2000 was filed by the first defendant to dismiss the suit as abated and LA. No. 3841/2000 was filed by the plaintiff in O.S. No. 392/94 to exempt her from impleading the legal representatives of the 2nd defendant in the suit. By the impugned common order the learned Sub Judge dismissed LA. No. 3813/2000 filed by the 1st defendant and allowed LA. No. 3841/2000 filed by the plaintiff. 3. The question for consideration in this C.R.P. is whether the lower court exceeded the rights in exercising its jurisdiction under O. XXII R.4(4) of the CPC. 4. The suit was filed by the plaintiff-respondent herein for declaration of title, recovery of possession and permanent prohibitory injunction in respect of the plaint schedule property. The 2nd defendant in the suit died on 20th November, 1998. His legal representatives were not impleaded in the suit. Therefore, the first defendant, petitioner herein filed LA. No. 3813/2000 on 16th August 2000 to record that the suit is abated. The plaintiff-respondent filed objection to that LA. and subsequently she filed LA. No. 3841/2000 to exempt her from impleading the legal representatives of the deceased 2nd defendant under O. XXII R.4(4) of the C.P.C. contending that the 2nd defendant remained absent and was set exparte in the suit on 22nd June 1995 and therefore, his legal representatives are not necessary parties to the suit. By the imugned order the lower court allowed LA. No. 3841/2000 and dismissed LA. No. 3813/2000. 5. O. XXII of C.P.C. deals with the death, marriage and insolvency of parties. O. XXII R.4 deals with the procedure in case of death of one of the several defendants or of sole defendant. Sub-r.1 of R.4 of O. XXII of the C.P.C. provides for impleading the legal representatives of the sole defendant or one of the defendants who died, on application made by the plaintiff. Sub-r.3 of R.4 provides that the suit shall abate as against the deceased defendant, if no application is filed under sub-r.1 within the time stipulated under law. Sub-r.1 of R.4 of O. XXII of the C.P.C. provides for impleading the legal representatives of the sole defendant or one of the defendants who died, on application made by the plaintiff. Sub-r.3 of R.4 provides that the suit shall abate as against the deceased defendant, if no application is filed under sub-r.1 within the time stipulated under law. Sub-r.4 of R.4 of O. XXII of C.P.C. stipulates that the court can exempt impleadment of the legal representatives of the deceased defendant who remained ex parte in the suit. But the judgment passed in the suit will be binding on the legal representatives of such deceased defendant. 6. The consequence of the abatement of the suit on the death of one defendant will vary from case to case. In certain cases death of one defendant and the consequent abatement of the suit will result in termination of the entire suit. O. XXII R.4(4) of the C.P.C. applies only in cases the abatement affects only the deceased defendant and not resulting in total abatement of the suit. Therefore, under O. XXII R.4(4) the Court has to consider all the facts and circumstances of the case while passing the order. Pronouncement of the judgment binding upon the legal representatives of the deceased defendant remaining ex parte in the suit will arise only if the suit continues against the other defendants irrespective of the death of one of the defendants and the abatement of the suit against him. 7. In the decision in B.S. Singh v. R.D. Singh, AIR 1973 SC 204 the Supreme Court has observed as follows: "3. Now the question is whether the appeal has abated or not. As seen earlier in the plaint a joint claim is made against all the defendants. The first appellate Court, as mentioned earlier, decreed the suit in part against all the defendants. The High Court has dismissed the suit against all the defendants. In this court relief asked for was against all the defendants. No seperate claim was made against any of the defendants. Under these circumstances, quite clearly the appeal has abated as a whole under O. XXII, R.4 of the Civil Procedure Code." 8. The High Court has dismissed the suit against all the defendants. In this court relief asked for was against all the defendants. No seperate claim was made against any of the defendants. Under these circumstances, quite clearly the appeal has abated as a whole under O. XXII, R.4 of the Civil Procedure Code." 8. Even though the above decision is rendered by the Supreme Court before incorporating O. XXII R.4(4) as per the amending Act of 104/76, the principle laid down in the above decision is applicable with regard to the abatement of the entire suit against all the defendants in cases where relief is claimed jointly against all the defendants and no relief is claimed against any of the defendants separately, the suit or appeal will abate against all defendants if it is abated for non-impleadment of the legal representatives of one of the defendants who died pending the suit. 9. In the decision in Madan Naik v. Hansubala Devi AIR 1983 SC 676 the Supreme Court has observed as follows: "It may be mentioned that no specific order for abatement of a proceeding under one or the other provision of 0.22 is envisaged, the abatement takes place on its own force by passage of time." 10. In the decision in Bakshish Singh v. Arjan Singh, (1996) 8 SCC 325 the Supreme Court has observed as follows: "4. It is well-settled law that when the decree is single and indivisible, there cannot be inconsistent decrees as against the deceased respondents and the contesting surviving respondents. It is seen that two respondent-partners died pending second appeal. Therefore, there cannot be any inconsistent decree as against the dead persons and against whom the decree dismissing the suit had become final and other contesting respondents whose rights are to be adjudicated in the second appeal." 11. The above suit is filed by the plaintiff-respondent for declaration of title and possession and for a decree of injunction restraining the defendants from committing any acts which will interfere in any manner with the plaintiff's right, possession and enjoyment of the plaint schedule property. The counsel for the petitioner submitted that the respondent prayed for a declaration against the estate of defendants 2 to 16 and for injunction against all the defendants. The counsel for the petitioner submitted that the respondent prayed for a declaration against the estate of defendants 2 to 16 and for injunction against all the defendants. The senior counsel also submitted that the nature of interest alleged in the plaint against all the defendants is joint and several and therefore, in the nature of the averments made in the plaint and the reliefs sought therein, the death of the 2nd defendant and consequent abatement of the suit against him, abated the suit against all the defendants. Therefore, by applying the principles enunciated in the above decisions, the court cannot pass inconsistent decrees and if the suit is proceeded against defendants 3 to 16, there will be likelihood of passing decree against them while the suit against the 2nd defendant is abated. Therefore, according to the counsel, O. XXIIR. 4(4) does not take in such a situation and the suit in this case is abated against all the defendants when it is abated against the 2nd defendant and as such the lower court has committed an absolute error of jurisdiction in dismissing the petition filed by the petitioner to dismiss the suit as abated and allowing the petition filed by the respondent by passing an order permitting the plaintiff not to implead the legal representatives of the deceased 2nd defendant in the suit. 12. The respondent has contended that she has not claimed any relief against defendants 2 to 16 in the suit and they were impleaded only as pro forma parties and not as necessary parties to the suit. In para 7 of the plaint it is alleged that deceased Mathew Kollamparambil bequeathed some of the properties belonged to him to his relatives who are defendants 2 to 16 and the remaining portions of the properties have been bequeathed to unspecified charities and the 1st defendant has been appointed as the executor of the Will. In para 9 of the plaint it is alleged that the 1st defendant filed O.S.1/1984 before this court for probate including the plaint schedule property herein as item 25 in that suit alleging that the property is included in the properties bequeathed to charities. The defendants in the suit are also impleaded in this suit for proper adjudication of the matter involved in the suit. The defendants in the suit are also impleaded in this suit for proper adjudication of the matter involved in the suit. In para 8 of the plaint it is alleged that the plaint schedule property herein is not included in both the Wills executed by the deceased Mathew Kollamparambil. In para 21 the cause of action alleged is on the date when the 1st defendant attempted to get possession of the property and the date on which the plaintiff perfected her title by adverse possession. No allegation is made in the plaint against defendants 2 to 16. The reliefs claimed are declaration of plaintiff's title to and possession of the plaint schedule property and permanent prohibitory injunction against the defendants from committing any act interfering with the plaintiff's right in, possession and enjoyment of the plaint schedule property. 13. The counsel for the respondent submitted that the entire averments made in the plaint clearly reveal that the dispute involved in this suit is only between the plaintiff and the 1st defendant and not between the plaintiff and the other defendants in the suit. It is also submitted by the counsel that the allegations made in the plaint in paras. 7, 8 and 9 noted above are not denied by the 1st defendant who alone is contesting the suit by filing written statement, while all the other defendants remained exparte in the suit. Therefore, in view of the fact that there is no allegation of any joint right for defendants 2 to 16 in this suit along with the 1st defendant, and defendants 2 to 16 have remained exparte in the suit as well as the 1st defendant has not controverted the specific allegations made in the plaint of seeking the relief against him in the suit, the 1st defendant cannot contend that defendants 2 to 16 are also interested in the subject-matter of the suit jointly with the 1st defendant and if the other defendants also will be abated. 14. It has to be noted that while the plaintiff is claiming title to and possession of the plaint schedule property by adverse possession and limitation, the 1st defendant claims the property as executor of the Will left by deceased Mathew Kollamparambil and included in the Will. 14. It has to be noted that while the plaintiff is claiming title to and possession of the plaint schedule property by adverse possession and limitation, the 1st defendant claims the property as executor of the Will left by deceased Mathew Kollamparambil and included in the Will. There is no question of joint right in or possession of the plaint schedule property by the 1st defendant along with defendants 2 to 16 in this case. But the counsel for the petitioner submitted that if the plaintiff failed in the suit to prove her claim of adverse possession and limitation in respect of the plaint schedule property, and since, the 1st defendant represents only the estate of the deceased, the property should devolve upon his legal representatives who are defendants 2 to 16 under S.47 of the Indian Succession Act. Therefore, he submitted that defendants 2 to 16 cannot be treated as mere sightseers in the suit as now contended by the plaintiff and they should have been impleaded as persons interested in the property. According to him, that fact is clear from the averments made in para 19 of the plaint to the effect that the plaintiff was under the bonafide belief that the 1st defendant or any other defendant may file a suit against the plaintiff. 15. Even though there is recital in the plaint in para 19 that the plaintiff expected that the 1st defendant or any other defendant will file a suit against her, that recital will not itself create an interest in favour of defendants 2 to 16 in the plaint schedule property jointly with the 1st defendant. From the written statement filed by the 1st defendant in this suit it is clear that he has been claiming the property as the executor of the Will left by the deceased Mathew Kollamparambil and he has not raised any contention that the property belongs to the defendants 2 to 16 as his legal representatives. 16. As already noted defendants 2 to 16 have remained exparte in the suit before the lower court. No claim is made by anyone of them in this suit as the legal representative of the deceased Mathew Kollamparambil. 16. As already noted defendants 2 to 16 have remained exparte in the suit before the lower court. No claim is made by anyone of them in this suit as the legal representative of the deceased Mathew Kollamparambil. Therefore, the contention of the 1 st defendant that in case the plaintiff failed to establish her claim of title to and possession of the plaint schedule property by adverse possession and limitation, the property devolve upon the legal representatives of the deceased Mathew Kollamparambil who are defendants 2 to 16 and as such the reliefs claimed in the suit is against all the defendants and therefore, the abatement of the suit as against one defendant will result in the abatement of the suit against all the defendants, is not sustainable, as it is clear from the reliefs claimed in the suit that no relief is claimed against any particular defendant or jointly against all the defendants except against trespass. 17. In the decision in Vishnumoorty v. Rudra Shedthi, (AIR 1974 Kam. 41) the Karnataka High Court has observed as follows: "The suit, as already mentioned, is one for possession against all or any of the defendants who may be found to be in possession. If defendants 2 and 3 or any of them is in possession and if the plaintiffs established their case entitling them to secure possession from defendants 2 and 3, the Court can undoubtedly make a decree in favour of the plaintiffs, in spite of the fact that the legal representatives of defendant 1 have not been brought on record. If, however, the court comes to the conclusion that defendants 2 and 3 are not in possession or that the plaintiffs failed to establish that they are entitled to secure a decree for possession from defendants 2 and 3, the suit may have to be dismissed. This is, therefore, not a case where one can say that in the absence of the legal representatives of defendant 1 the rights of the parties cannot at all be adjudicated upon." 18. In the decision in Tanhabai v. Dhondlram, (AIR 1974 Bom.107) the Bombay High Court has observed as follows: "14. It appears that defendants 1 to 4 belong to the same family as they are the sons of Pandurang Hag. Defendant No. 5 is a stranger. All these defendants together have 1/3 share in the suit well. In the decision in Tanhabai v. Dhondlram, (AIR 1974 Bom.107) the Bombay High Court has observed as follows: "14. It appears that defendants 1 to 4 belong to the same family as they are the sons of Pandurang Hag. Defendant No. 5 is a stranger. All these defendants together have 1/3 share in the suit well. As the parties, i.e. the defendants 1 to 4 belong to a Hindu family, there is a presumption that it is a joint family. There is nothing on the record to show that there was any partition or severance of status in this family. Even after the death of defendant No.1 the estate is effectively represented by the other members of the joint family. It, therefore, follows that after the death of defendant No.1 the appeal against the other defendants did not abate." 19. In the decision in Rahim v. Rajamma, (AIR 1977 Karnataka 20) a single judge of the Karnataka High Court has observed as follows: "If the Court, in exercise of its discretion, grants exemption to the plaintiff from the necessity to substitute the legal representatives of the concerned defendant, the court can proceed to dispose of the suit and pronounce judgment against such defendant notwithstanding the fact that the legal representatives of such defendant have not been brought on record. When such judgment is pronounced, sub-r.(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-r.(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. 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. As, in law, it has to be deemed that no abatement has taken effect, it is not possible to accede to the contention of Shri. Muralidhar Rao that the power of exemption conferred by sub-r.(4) cannot be exercised by the Court after 90 days from the date of death of the deceased after the abatement has taken effect. Resides, it appears to me having regard to the language of sub-r.(4) which provides that the power of exemption under sub-r.(4) can be exercised by the Court whenever it thinks fit, no such limitation on the power of the court in the matter of granting exemption can be inferred. The Court is empowered by the express language of sub-r.(4) to exercise the power of exemption whenever it thinks fit before the disposal of the suit." 20. In the decision in Rajnath v. Shiva Prasad (AIR 1979 Patna 239) a Division Bench of the Patna High Court has observed as follows: "9. In my opinion, the legislature has put two conditions while applying the provisions of 0.22, 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 0. 22, R.4 (4) shall not apply. If the aforesaid conditions are fulfilled, the court can apply provisions of 0.22, Rule 4 (4) at any time before delivery of judgment." 21. In the decision in Janabai Ammal v. 7L4.S. Palani Mudallar (AIR 1981 Madras 62) a Division Bench of the Madras High Court after considering various decisions of the Madras High Court and other High Courts, has observed as follows: "We are in full agreement with the views expressed by the Division Bench of this Court in Lakshmanan v. Chidambaram (ILR 58 Mad, 752) _ (AIR 1935 Mad. 236), by Natesan, J. in Velappan v. Parappan (AIR 1969 Mad. 236), by Natesan, J. in Velappan v. Parappan (AIR 1969 Mad. 309) and by the other High Courts in the decisions referred to above, and accordingly we grant exemption to the appellant-plaintiff from the necessity of substituting the legal representatives of the deceased fifth respondent in his place." In that case the 5th respondent in the appeal was one Balasubramanian Mudaliar, the 5th defendant in the suit who had no interest in the litigation and was added only as a pro forma party to the suit, who died on 27th March 1977 and the Division Bench granted exemption to the plaintiff-appellant from impleading the legal representatives of the 5th respondent. 22. In the decision in Nachammal v. Marakatha Ammal (1991(1) KLT 719) a Single Judge of this Court after considering the decisions of the Madras High Court in AIR 1969 Madras 309,1981 Mad. 62 and that of the Gauhati High Court in AIR 1979 Gauhati 1 and following the decisions reported in AIR 1977 Karnataka 20 referred to above and dissenting from the opposite view expressed by the Orissa and Calcutta High Courts, has observed as follows: "From the wording of sub-r.(4) it is clear that a legal fiction is introduced by which even though the judgment is pronounced after the death of the deceased defendant, it shall be deemed to have been pronounced before his death. If that is the presumption, it has to be deemed that the defendant is alive on the date of the judgment, even though the judgment was after his death. By a legal fiction the effect of an abatement under O. XXIIR. XXII, R.3 is effaced by the deeming provision contained in sub-r.(4) of R.4,0. XXII. Once the Court grants exemption a judgment can be passed even against the deceased defendant and by virtue of the deeming provision the position is as if the judgment was pronounced before his death and if so, there cannot be any question of abatement. In other words, it is clear that sub-r.(4) is in effect an exception to sub-r.(3) and in that view of the matter any court in a given circumstance has jurisdiction to exempt the plaintiff from impleading the legal representatives of an ex parte defendant at any time before the judgment is pronounced". 23. In other words, it is clear that sub-r.(4) is in effect an exception to sub-r.(3) and in that view of the matter any court in a given circumstance has jurisdiction to exempt the plaintiff from impleading the legal representatives of an ex parte defendant at any time before the judgment is pronounced". 23. In the decision in Kalyani Bai v. Madan Nadar(1999 (3) KLT 888) a Single Judge of this Court relying upon the decisions of the Madras High Court, Patna High Court, Gauhati High Court, Delhi High Court and Allahabad High Court and differing from the view expressed by the Orissa and Calcutta High Courts has held that there cannot be any restriction to the exercise of the discretion vested in the Court under O. XXII R.4(4) to exempt a party from substituting the legal heirs of the deceased defendant without contesting the suit even after the suit against him is abated. 24. In the decision in Md, S, Imam v. Rai Bharat Kumar (AIR 2000 Patna 321) a Division Bench of the Patna High Court after considering the various decisions of different High Courts has observed as follows: "Thus, after having considered the matter from different angles, I hold that O. XXII, R.4(4) of the Code vests power in the Court to consider the matter of exemption from necessity of substituting legal representatives of defendant/ defendants, who failed to file written statement or who having filed it failed to appear and contest the suit at the hearing at any stage of the suit before pronouncement of the judgment, ft is not controlled by O. XXII, R.4(3) of the Code and even if the abatement has taken place, that will not prevent the Court from exercising power under O. XXII, R.4(4) of the Code. At this stage, it is to be clarified that the abatement takes place automatically and no order is required to be recorded for the same. In that view of the matter, even after an order of abatement is recorded, that will not stand in the way of the Court to exercise the power under O. XXII, R.4(4) of the Code As stated above, S.97(2)(r) of the Amending Act only provided that the provisions of sub-r.(4) shall not apply to any suit where the order of abatement has already been made prior to the commencement of its operation. It never said in general terms that after an order of abatement has been passed, the provision of sub-r.(4) of R.4 of 0. XXII of the Code will not apply. Neither there is any logic nor is there any rationality in taking the aforesaid view for the simple reason that recording of an order of abatement is not a condition precedent for the abatement to take effect. Sub-r.(4) by S.73 of the Amending Act was incorporated in O. XXII, R.4 of the C.P.C. to allow exemption in a suit where the defendant is not contesting and it is for the Court to consider whether exemption should be allowed or not. The said prayer cannot be disallowed on the ground that the legal representatives of the deceased are necessary parties and in absence of them no decision can be taken. The legislature has itself provided that in case of non-contesting defendant even without substitution of his heirs, the judgment can be pronounced, which has the same effect as if the same was delivered during the lifetime of the deceased defendant." 25. From the above decisions of this Court as well as the various High Courts, it is clear that under the provisions of O. XXII R.4(4) of the CPC the Court can grant exemption to the plaintiff from impleading the legal representatives of the deceased defendant who failed to appear and contest the suit at any stage in the suit before pronouncement of the judgment. Even though abatement of the suit in respect of the deceased defendant will take effect as against the deceased defendant by passage of time as provided under R.4(3) of O. XXII of the C.P.C., while exercising jurisdiction under R.4(4) of O. XXII, the Court is not controlled by the provisions of O. XXII R.4(3). of the C.P.C. Since abatement takes place automatically and no order is required to be passed by the Court to that effect, the jurisdiction under O. XXII R.4(4) of the C.P.C. can be exercised even in cases order of abatement has been pronounced by the Court. of the C.P.C. Since abatement takes place automatically and no order is required to be passed by the Court to that effect, the jurisdiction under O. XXII R.4(4) of the C.P.C. can be exercised even in cases order of abatement has been pronounced by the Court. It is also clear that unless and until the abatement of the suit against the deceased defendant results in abatement of the suit against all the defendants, the existing defendants cannot contend that the abatement of the suit against the deceased defendant will result in abatement of the suit against all the defendants and an order under O. XXII R.4(4) of the CPC cannot be passed exempting the plaintiff from impleading the legal representatives of the deceased defendant. Therefore, the lower court is perfectly justified in allowing I. A. No. 3841/2000 filed by the plaintiff exempting her from impleading the legal representatives of the deceased 2nd defendant under O. XXII R.4(4) of the C.P.C. and dismissing LA. No. 3813/2000 filed by the 1st defendant, petitioner herein seeking to dismiss the suit as abated. Hence the impugned order passed by the lower court is confirmed and the revision petition is dismissed.