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2011 DIGILAW 634 (CAL)

Pradip Shaw v. Rambilash Gupta

2011-05-05

PRASENJIT MANDAL

body2011
JUDGMENT Prasenjit Mandal, J. 1. THIS application is directed against the order dated January 5, 2004 passed by the learned Civil Judge (Junior Division), 5th Court, Howrah in Title Suit No.206 of 1995 thereby rejecting the application under Order 22 Rule 4(4) of the C.P.C. and allowing the application dated July 24, 2003 thereby abating the said suit. 2. THE plaintiff / petitioner herein instituted a suit being Title Suit No.206 of 1995 against the opposite party and another for eviction of licensees from the premises in suit as described in the schedule of the plaint before the learned Civil Judge 5th (Junior Division), Court, Howrah. The opposite party is contesting the said suit by filing a written statement. Summons was duly served upon the defendant no.2. Thereafter, the defendant no.2 entered appearance in the suit. But he did not take any step subsequently. Nor did he file any written statement. As such, the suit was heard ex parte against him. During the pendency of the suit, the defendant no.2 died and the plaintiff prayed for exemption from substituting the heirs of the deceased defendant no.2. That application was rejected by the impugned order. By the same order, the learned Trial Judge has also allowed the application of the defendant no.1 praying for abatement of the suit. Being aggrieved by such order, the plaintiff has preferred this revisional application. Now, the following questions have arisen for decision in this revisional application:- i) Whether the learned Trial Judge was justified in rejecting the application under Order 22 Rule 4(4) of the C.P.C. ii) Whether the learned Trial Judge was justified in allowing the application of the defendant no.1 praying for abatement of the suit. 3. UPON hearing the learned counsel for the parties and on going through the materials on record, I find that the defendant no.2 died on January 5, 2002, that is, during pendency of the said suit. There is no dispute that summons was served upon the defendant no.2 and he entered appearance, but he did not contest the suit afterwards. It is not in dispute that the plaintiff has sought for a decree for recovery of possession against the licensees. 4. THE Code of Civil Procedure has undergone change by the Act of 104 of 1976 w.e.f. February 1, 1977. It is not in dispute that the plaintiff has sought for a decree for recovery of possession against the licensees. 4. THE Code of Civil Procedure has undergone change by the Act of 104 of 1976 w.e.f. February 1, 1977. The matter in issue involves herein the application under Order 22 Rule 4(4) of the C.P.C. For convenience, the said provision is quoted below:- Under Order 22 Rule 4(4) of the C.P.C. 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. Therefore, from the above provision, it is clear that in appropriate cases, on the prayer of the plaintiff, the Court is empowered to proceed with the suit and pronounce judgment without substitution when the defendant has failed to file a written statement. In the instant case, so far as the defendant no.2 is concerned, he died during the pendency of the suit and before the pronouncement of the judgment, the plaintiff has sought for exemption from the necessity of substituting the legal heirs of the defendant no.2. Such a recourse is permissible and the effect will be that as if the judgment has been pronounced before the death took place. In the instant case, the exact situation took place and the plaintiff prayed for exemption by filing an application under Order 22 Rule 4(4) of the C.P.C. as amended in 1976. 5. NO doubt, abatement is automatic, as soon as the plaintiff fails to take necessary steps for substitution within the time limit as permissible. In the instant case, no substitution was prayed for before the abatement. So, the abatement is automatic after lapse of the time limit for substitution. But, Rule 4(4) of the said order provides a special procedure for exemption for the plaintiff to take necessary steps for substitution during the pendency of the suit. In the instant case, no substitution was prayed for before the abatement. So, the abatement is automatic after lapse of the time limit for substitution. But, Rule 4(4) of the said order provides a special procedure for exemption for the plaintiff to take necessary steps for substitution during the pendency of the suit. There is no clear indication that such a recourse must be taken before the abatement of the suit with regard to the defendant no.2 or the suit as a whole. What is required by the law is that before the pronouncement of the judgment, such an application must be filed and such a recourse has been resorted to by the plaintiff. Therefore, the learned Trial Judge has failed to exercise the jurisdiction vested in him with regard to the application under Order 22 Rule 4(4) of the C.P.C. 6. DURING argument, Mr. Gupta appearing on behalf of the opposite party has vehemently objected to the submission of the learned Advocate for the plaintiff that such an application could be filed at any time before the pronouncement of the judgment. Mr. Gupta has contended that since the suit is for eviction of licensees, the right of the individual defendant with regard to the premises in suit is not divisible and as such, when no step for substitution was taken within the time limit, abatement in respect of the entire suit is automatic and the effect of the same is the dismissal of the suit and so, the provision of Rule 4(4) of the C.P.C. cannot be applied. This submission, I hold, cannot be accepted because of the fact that when the application under Rule 4(4) of the C.P.C. is allowed, the fact would be the pronouncement of the judgment as if, the judgment had been delivered before the death of the deceased defendant. It may be that the right of the individual defendants with regard to the premises in suit is indivisible, yet when the application under Rule 4(4) of the C.P.C. is allowed, the question of indivisible right with regard to the suit property and the effect of death of one defendant become irrelevant for the reasons stated above. Mr. Gupta has referred to the decision of an unreported case in C.R. No.3152(S) of 2000 wherein a single bench of this Honourable Court has held that abatement is automatic. Mr. Gupta has referred to the decision of an unreported case in C.R. No.3152(S) of 2000 wherein a single bench of this Honourable Court has held that abatement is automatic. The appeal before the learned First Appellate Court stood abated, notwithstanding the fact that no recording of abatement was made by the First Appellate Court. As a result, the decree passed by the First Appellate Court was set aside directing the learned Appellate Court to give an opportunity to them to have the abatement set aside, if the parties can satisfy the Court that they are so entitled to in law. So, the decision signifies that the matter did not need there. The Honourable Bench gave liberty to the parties to take appropriate steps after setting aside the decree of the learned Appellate Court which was passed against dead person. The said decision did not consider at all the provisions of Rule 4(4) of the C.P.C. I, therefore, hold that the said decision will not be applicable in the instant case. 7. SIMILARLY, Mr. Gupta has referred to the decision of Kanailal Manna and ors. v. Bhabataran Santra and ors. reported in AIR 1970 CAL 99 . This decision lays down that death of one plaintiff before hearing of appeal took place and the appeal was dismissed. The joint decree was passed in ignorance of death. The decree abates. The said judgment was delivered on January 13, 1969, that is, prior to the amendment of the Act No.104 of 1976. Therefore, I hold that this decision will not be applicable in the instant case. Mr. Gupta has next referred to the decision of Mithailal Dalsangar Singh and ors. v. Annabai Devram Kini and ors. reported in (2003) 10 SCC 691 particularly the paragraph no.8 and thus, he submits that abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated, is not called for. This is now a settled proposition of law as per several decisions of the Appex Court but with due respect to Mr. Gupta, I hold that this decision will not be applicable in the instant case inasmuch as the said decision did not deal with the provisions of Order 22 Rule 4(4) of the C.P.C. 8. MR. This is now a settled proposition of law as per several decisions of the Appex Court but with due respect to Mr. Gupta, I hold that this decision will not be applicable in the instant case inasmuch as the said decision did not deal with the provisions of Order 22 Rule 4(4) of the C.P.C. 8. MR. Gupta has referred to the other decisions of AIR 1931 Patna 353, AIR 1935 Patna 121 and AIR 1938 CAL 639 on abatement under Order 22 Rule 4(4) of the C.P.C. I find that those decisions were passed prior to the enactment of the Act 104 of 1976. Therefore, these decisions will not apply at all in the instant case. Since, the defendant no.2 entered appearance in the suit; but he neither filed any written statement nor contested the suit, I am of the opinion that the plaintiff has taken steps under Order 22 Rule 4(4) of the C.P.C. before pronouncement of the judgment properly. The only limitation in filing the application under Rule 4(4) of the C.P.C. is that it must be filed before the pronouncement of the judgment irrespective of the fact whether abatement took place or not. The application under Rule 4(4) of the C.P.C. having been filed before the pronouncement of judgment, according to the decisions of Md. S. Imam v. Rai Bharat Kumar reported in AIR 2000 Patna 321, Krishnaveni v. Ramchandra Naidu reported in AIR 1998 Maddras 379 and Gurubasappa v. Magendrappa reported in AIR 1984 Kant. 1, the benefits of Rule 4(4) would be available notwithstanding abatement which is a automatic process. Such benefits can be availed of by the plaintiff at any stage before judgment. I am of the view that the learned Trial Judge has failed to exercise the jurisdiction vested in him. He should have allowed the application under Rule 4(4) of the C.P.C. So, this part of the impugned order cannot be supported and it must be set aside. 9. SUBSEQUENTLY, the other part of the order, that is, allowing the application dated July 24, 2003 filed by the defendant no.1 stands rejected. 10. IN that view of the matter, I am of the opinion that the impugned order cannot be sustained. It should be set aside. Accordingly, the revisional application is allowed. The impugned order is hereby set aside. SUBSEQUENTLY, the other part of the order, that is, allowing the application dated July 24, 2003 filed by the defendant no.1 stands rejected. 10. IN that view of the matter, I am of the opinion that the impugned order cannot be sustained. It should be set aside. Accordingly, the revisional application is allowed. The impugned order is hereby set aside. The application under Order 22 Rule 4(4) of the C.P.C. filed by the plaintiff stands allowed and the application dated July 24, 2003 filed by the defendant no.1 stands rejected. The learned Trial Judge shall proceed with the suit in accordance with such observations and in accordance with law. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.