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2014 DIGILAW 510 (ORI)

Narayan Chandra Sahu v. Radhashyam Maheswar

2014-08-20

S.PANDA

body2014
Judgment S.Panda, J. This Civil Miscellaneous Petition has been filed by the petitioners challenging the order dated 31.8.2013 passed by the learned 3rd Addl. District Judge, Cuttack in T.A No.93 of 1999 allowing an application filed by the opposite party no.1 under Order 22, Rule 4 (4) of C.P.C for exemption from substituting the legal heirs of the deceased defendant no.1, who died on 19.1.2013. 2. The facts leading to the present case are that opposite party no.1 as plaintiff filed T.S No.284 of 1990 before the learned Civil Judge (Senior Division), 1st Court, Cuttack claiming the following relief:- “for a decree of specific performance of contract for execution of Sale Deed by the landlord and the present petitioners in respect of the suit property on payment of balance consideration of Rs.35,000/-failing which the Sale Deed may be executed by the court on behalf of them and for permanent injunction restraining them from interfering with the possession of the plaintiff” In the said suit the present petitioners were arrayed as defendant nos.2, 3 and 4 and one Prabhulal Bhagwan Jee was arrayed as defendant no.1. The suit was contested by the present petitioners, however, defendant no.1 though appeared did not file written statement and was set ex parte. The trial court by its judgment dated 14.10.1999 dismissed the suit on contest against the present petitioners and ex parte against defendant no.1. 2.1 The plaintiff being aggrieved preferred T.A No.93/99 before the learned District Judge, Cuttack. Notice in the said appeal was issued to all the respondents. Defendant no.1, who is respondent no.1 in the appeal, received notice personally on 24.7.2000 and on 21.7.2000 received notice through registered Post. However, he chose not to appear in the appeal. Defendant nos.2, 3 and 4 appeared and contested the appeal. The lower Appellate Court by its judgment dated 09.4.2003 while setting aside the judgment and decree passed by the trial court directed that the plaintiff is entitled to bring the suit against the defendants and the suit is found to be maintainable for which the plaintiff is entitled to the relief as prayed for. 2.2 Thereafter, the plaintiff filed an application under Section 28 (3) of the Specific Relief Act before the trial court for execution of the Sale Deed. The opposite parties refused to receive notice on the application under Section 28 (3) of the Specific Relief Act on 07.2.2009. 2.2 Thereafter, the plaintiff filed an application under Section 28 (3) of the Specific Relief Act before the trial court for execution of the Sale Deed. The opposite parties refused to receive notice on the application under Section 28 (3) of the Specific Relief Act on 07.2.2009. Accordingly, notice was made sufficient on the said opposite parties and the court below directed the plaintiff to deposit the balance consideration of Rs.35,000/-along with the Draft Sale Deed by 20.11.2009. In pursuance of the said direction the plaintiff deposited the balance consideration amount as filed the Draft Sale Deed. On 16.4.2010 notice sent by the court to the petitioners to execute the Sale Deed was refused by the wife of defendant no.1. On 21.4.2010 service of notice on defendant no.1 on refusal was held to be sufficient. The Draft Sale Deed was approved and sent to Sub-Registrar for assessment of Stamp Duty. While matter stood thus, on 22.5.2010 a memo along with Xerox copy of death certificate of defendant no.1 was filed on behalf of the petitioners, which reveals that defendant no.1 died on 19.1.2003. After receiving such information the plaintiff filed an application under Order 22, Rule 4 (4) of C.P.C for exempting the plaintiff from substituting the legal heirs of the deceased defendant no.1. The trial court directed the plaintiff to take steps for issue of notice on the legal heirs of deceased defendant no.1. Though such notice was issued to the legal heirs, they did not file any objection. As no objection was filed by the legal heirs of the deceased defendant no.1, on 17.5.2011 the trial court directed that the Sale Deed is to be executed by the court on behalf of defendant no.1 and defendant nos.2, 3 and 4. 2.3 The said order was challenged by the legal heirs of defendant no.1 before this Court in W.P.(C) No.15486 of 2011 whereas the present petitioners filed W.P.(C) No. 24595 of 2011 impleading the daughters of defendant no.1 as opposite party nos.3 and 4 and the plaintiff as opposite party no.1. Both the Writ Petitions were disposed of by this Court by a common order dated 28.9.2011. Both the Writ Petitions were disposed of by this Court by a common order dated 28.9.2011. This Court remitted the mater back to the court below to reconsider the question whether the appellate decree became a nullity and, therefore, was incapable of being made final by way of execution of sale deed, treating the petition filed by defendant nos.2 to 4 purportedly under Section 47 of the C.P.C as an objection to the proceeding under Section 28 (3) of the Specific Relief Act and whether bringing of the legal heirs of deceased defendant no.1 on record in the proceeding even though without any formal order of substitution would have the effect of curing such defect in the decree. 2.4 After remand the lower Appellate Court by its order dated 31.8.2013 allowed the application under Order 22, Rule 4 (4) of C.P.C on contest exempting the plaintiff from substituting the legal heirs of the deceased defendant no.1. The said order is challenged in the present application. 3. Learned counsel appearing for the petitioners submitted that since the judgment and decree passed by the court below against a dead person is a nullity as observed by this Court in the earlier Writ Petition, the court below should have allowed the application under Order 22, Rule 4 (4) of C.P.C as the appeal is not pending and was disposed of long before on 09.4.2013. Therefore, the impugned order need be interfered with. In support of his contention he has cited the decisions reported in AIR 1979 GAUHATI 1 and AIR 1969 MADRAS 309. 3.1 In the case of Nepal Chandra Saha Vs. Rebati Mohan Saha and others reported in AIR 1979 GAUHATI 1 the Court held that the provisions of Order 22, Rule 4 (4) of C.P.C are applicable to appeal as well as to the suit and this power to exempt under the sub-rule can be exercise at any time before the judgment, even after the abatement has taken place. 3.2 In the case of Velappan Pillai Vs. Parappan Panickar and others reported in AIR 1969 MADRAS 309 the Court held that the provisions of Order 22, Rule 4 (4) of C.P.C could be availed of at any time before judgment. 4. 3.2 In the case of Velappan Pillai Vs. Parappan Panickar and others reported in AIR 1969 MADRAS 309 the Court held that the provisions of Order 22, Rule 4 (4) of C.P.C could be availed of at any time before judgment. 4. Learned counsel appearing for opposite party no.1 submitted that since defendant no.1 was set ex parte as he has not filed written statement nor contested the suit, rightly the lower Appellate Court allowed the plaintiff-appellant to substitute the legal heirs of deceased defendant no.1 as provided under Order 22, Rule 4 (4) of C.P.C. In support of his contention he has relied on the decisions reported in 64 (1987) CLT 289 and (1999) 1 SCC 158 . 4.1 In the case of Lobi Dei and another Vs. Kubera Balabantara and others reported in 64 (1987) CLT 289 this Court held that one of the respondents expired during pendency of the appeal, which was disposed of before expiry of period for filing an application for substitution, appellate decree cannot be held as nullity. 4.2 In the case of Jagdish Prasad and others Vs. Sukh Ram reported in (1999) 1 SCC 158 the Supreme Court held that since the matter was pending before the High Court on the date of death of party, the application for bringing on record the legal representatives not maintainable before Supreme Court and the application was remitted back to the High Court for consideration of substitution of the legal heirs. 5. From the facts narrated above, it appears that defendant no.1 has not appeared in spite of valid service of notice and he died on 19.1.2003. The death of said defendant no.1 neither informed to the court by the leaned counsel appearing for the respondents as provided under Order 22, Rule 10-A of C.P.C nor the same was within the knowledge of the appellant. The statute provides 90 days period for substitution of the legal heirs of the deceased party and before completion of such period, the appeal was disposed of on 09.4.2003 i.e. 80 days from the date of death of defendant no.1. The statute provides 90 days period for substitution of the legal heirs of the deceased party and before completion of such period, the appeal was disposed of on 09.4.2003 i.e. 80 days from the date of death of defendant no.1. Further as the suit is for specific performance of contact, the plaintiff-appellant filed an application under Order 22, Rule 4 (4) of C.P.C for exemption to substitute the legal heirs of deceased defendant no.1 as he has failed to file the written statement to contest the case both in the trial court as well as in the lower Appellate Court. As the death of defendant no.1 was occurred during pendency of the appeal, opposite party no.1 has rightly filed the application before the court below under Order 22, Rule 4 (4) of C.P.C. The court below taking into consideration the said fact, allowed the application by the impugned order. This Court in the case reported in 64 (1987) CLT 289 as well as the Supreme Court in the case reported in (1999) 1 SCC 158 (supra) held that the application is to be filed where the death occurred and the court will consider the same. In view of the aforesaid decisions, the court below passed the impugned order after giving opportunity of hearing to both parties. 6. The Apex Court in the case of Mata Prasad Mathur (dead) by LRs. Vs. Jwala Prasad Mathur and others reported in 2013 (I) CLR (SC) 843 discussed about the 27th Report of the Law Commission of India, on the Amendment to the Code of Civil Procedure, 1908. The Commission has not incorporated the relaxation of Order 22, Rule 4 of C.P.C in respect of local Amendments made by the High Courts of Calcutta, Madras, Orissa in respect of a defendant, who has failed to appear and contest the suit. However, the Amendment that followed the 54th Law Commission Report of 1973, substantially introduced Order 22, Rule 4 (4) to the Code of Civil Procedure, vide Section 73 (i) of Act 104 of 1976. It is noteworthy that in the original Bill, the provision of Order 22, Rule 4 (4) was not included. The Bill was then referred to the Joint Committee and a recommendation made for the inclusion of a provision akin to Rule 4 (4). The Joint Committee noted: “55. It is noteworthy that in the original Bill, the provision of Order 22, Rule 4 (4) was not included. The Bill was then referred to the Joint Committee and a recommendation made for the inclusion of a provision akin to Rule 4 (4). The Joint Committee noted: “55. Clause 73 (Original Clause 76) – (i) The Committee were informed during the course of evidence by various witnesses that delay in the substitution of the legal representatives of the deceased defendant was one of the causes of delay in the disposal of suits. The Committee were also informed that, as a remedial measure, the Calcutta, Madras, Karnataka and Orissa High Courts had inserted a new Sub-rule in Rule 4 of Order 22 to the effect that substitution of the legal representatives of a non-contesting defendant would not be necessary and the judgment delivered in the case would be as effective as it would have been if it had been passed when the defendant was alive. The Committee are, therefore, of the view that in order to avoid delay in the substitution of the legal representatives of the deceased defendant and consequent delay in the disposal of suits, similar provision may be made in the Code itself. New sub-rule 3A in rule 4 of Order 22 has been inserted accordingly”. The Joint Committee, accordingly, inserted the following provision in the Amendment Bill, which was later incorporated through the Amendment. “73. In the First Schedule, in Order 22 – (i) in Rule 4, after Sub-rule (3), the following sub-rules shall be inserted, namely:- “(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 of 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 and shall have the same force and effect as if it has been pronounced before death took place”. The Legislature incorporated the provision of Order 22, Rule 4 (4) with a specific view to expedite the process of substitution of the LRs of non contesting defendants. The Legislature incorporated the provision of Order 22, Rule 4 (4) with a specific view to expedite the process of substitution of the LRs of non contesting defendants. In the absence of any compelling reason to the contrary the Courts below could and indeed ought to have exercised the power vested in them to avoid abatement of the suit by exempting the plaintiff from the necessity of substituting the legal representative of the deceased defendant. Accordingly, the Court held that there is no manner of doubt that the view taken by the First Appellate Court and the High Court that, failure to bring the legal representatives of deceased defendant did not result in abatement of the suit can be more appropriately sustained on the strength of the power of exemption that was abundantly available to the Courts below under Order 22, Rule 4 (4) of the C.P.C. 7. Section 28 of the Specific Relief Act provides that the Court has to pass an order as the justice of the case may require. Justice is not an abstract proposition. It is a concrete reality. The parties on approaching the Court must get the feeling that justice has been done in the facts and circumstances of the case, particularly in specific performance related cases, in terms of equity, equality and fairness. It is now settled law that a suit for specific performance does not come to an end on passing of a decree and the Court which passed the decree retains control over the decree even after the decree has been passed and the decree is sometimes described as the preliminary decree. The decree for specific performance is a decree in favour of both the plaintiff and the defendant in the suit, as held by the Apex Court in the case of Hungerford Investment Trust Ltd (In Voluntary Liquidation) Vs. Haridas Mundhra and others reported in (1972) 3 SCC 684 . Hence, the court below rightly passed the impugned order under Section 28 of the Specific Relief Act. 8. In view of the discussions made hereinabove and as there is no error apparent on the face of the record, this Court is not inclined to interfere with the impugned order dated 31.8.2013 passed by the learned 3rd Addl. District Judge, Cuttack in T.A No.93 of 1999 in exercise of the jurisdiction under Article 227 of the Constitution of India. In view of the discussions made hereinabove and as there is no error apparent on the face of the record, this Court is not inclined to interfere with the impugned order dated 31.8.2013 passed by the learned 3rd Addl. District Judge, Cuttack in T.A No.93 of 1999 in exercise of the jurisdiction under Article 227 of the Constitution of India. Accordingly, this Civil Miscellaneous Petition along with Misc. Case is dismissed. The interim order dated 20.3.2014 passed by this Court in Misc. Case No.182 of 2014 stands vacated.