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2015 DIGILAW 1579 (HP)

Saroj v. Brikam Jeet

2015-10-29

DHARAM CHAND CHAUDHARY

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Judgment : Dharam Chand Chaudhary, J. (oral). This appeal is directed against the judgment and decree dated 9.10.2012, passed by learned Additional District Judge, Fast Track Court, Shimla, Camp at Rohru in Civil Appeal RBT No. 69-R/13 of 2008/05. The same after its admission is at the stage of final hearing. When the process was issued to respondent-proforma defendant No.3 Dwarka Devi, it transpired that she has expired. 2. This has led in filing the application under Order 22 Rule 4 (4) read with Section 151 of the Code of Civil Procedure, CMP No. 7479 of 2015, aforesaid for deletion of her name on the ground inter alia that deceased respondent No.3 allowed herself to be proceeded against exparte not only in the trial Court but also in the lower appellate Court. She has neither filed the written statement nor contested the suit. Deceased respondent No.3 has died on 7.9.2006. Though death certificate has not been placed on record, however, the submissions to this effect in para 3 of the application CMP No. 7479 of 2015 are supported by the affidavit of the applicant, Saroj. 3. True it is that in a case where the defendant has failed to file the written statement and if written statement is filed to contest the suit or allowed himself to be proceeded against exparte, the plaintiff can be exempted from substitution of the legal heirs and legal representatives of such deceased defendant. However, the application for the purpose should have been filed during the pendency of the appeal in the lower appellate Court for the reason that the death of respondent-defendant No.3 Dwarka Devi has occurred on 7.9.2006, when the appeal was pending disposal in the lower appellate Court. 4. The law on the point is no more res integra as the Hon’ble Apex Court in T Gnanavel versus T.S. Kanagaraj and Another, (2009) 14 SCC, 294, after discussing the scope of the provisions contained under Order 22 Rule 4(4) of the Code of Civil Procedure, has held as follows:- “25. We are unable to accede to this submission of Mr. Ranjit Kumar, the learned senior counsel appearing on behalf of the appellant for the simple reasons viz. We are unable to accede to this submission of Mr. Ranjit Kumar, the learned senior counsel appearing on behalf of the appellant for the simple reasons viz. (1) on the abatement caused on the death of defendant, the suit automatically abated in view of the provisions under Order XXII Rule 4(3) CPC and (2) from the decision in the case of Zahirul Islam vs. Mohd. Usman and Others, (supra), it would be evident that no exemption was sought or granted under Order XXII Rule 4(4) CPC in the aforesaid decision. In any view of the matter, Order XXII Rule 4(4) CPC clearly says that such exemption to bring on record the heirs and legal representatives of the deceased could be taken or granted by the court only before the judgment is pronounced and not after it. 26. In view of our discussions made hereinabove and after going through the provisions under Order XXII Rule 4(4) CPC, as discussed herein earlier, and in view of the principles laid down by the aforesaid decision, it is, therefore, clear that if exemption, which is provided under Order XXII Rule 4(4) CPC is obtained from the Court before the delivery of the judgment, in that case, it would be open to the Court to exempt the plaintiff from bringing on record the heirs and legal representatives of the defendant even if, the defendant had died during the pendency of the suit as if the judgment was pronounced by treating that the defendant was alive notwithstanding the death of such defendant and shall have the same force and effect as if it was pronounced before the death had taken place. That being the position, we are, therefore, of the view that since in this case, admittedly, exemption was obtained after the judgment was pronounced, the provision of Order XXII Rule 4(4) CPC would not be attracted. 27. In our view, the aforesaid decision in the case of Zahirul Islam can also be distinguished on facts. As noted herein earlier, in that decision, the plaintiff did not seek permission of the Court under Order XXII Rule 4(4) CPC and in that view of the matter, this Court held that the legal representatives of the deceased defendant was entitled to be brought on record in the suit. As noted herein earlier, in that decision, the plaintiff did not seek permission of the Court under Order XXII Rule 4(4) CPC and in that view of the matter, this Court held that the legal representatives of the deceased defendant was entitled to be brought on record in the suit. Admittedly, in our case, after the judgment was pronounced, the permission was sought to exempt the plaintiff from the necessity of substituting the heirs and legal representatives of the defendant and not before it. That being the position, we do not find any ground to rely on this judgment of this Court as sought by Mr. Ranjit Kumar, learned senior counsel appearing for the appellant. 28. This view has also been expressed by Madras High Court in a decision reported in Elisa and others vs. A. Doss, in which the Madras High Court in paragraph 3 had observed as follows :- "It is seen from the rules that an application to bring the legal representatives on record shall be made within the time limited by law and if no application is made within the said period, the suit shall abate as against the deceased defendant. That is the effect of sub rule (3). Sub-rule (4) provides an exception to sub-rule (3). Under Sub-Rule (4), it is open to the court to pass an order exempting the plaintiff from the necessity of bringing on record the legal representatives of any defendant, who had failed to file a written statement or if having filed the written statement, failed to appear and contest the suit at the hearing. But, the language of sub rule (4) is clear enough to show that the court must pass an order exempting the plaintiff from the necessity of substituting the legal representatives. Of course, it is not necessary for the plaintiff to file a written application seeking such exemption, as the rule does not require one. Under the said rule, the court must apply its mind and think it fit, in the facts and circumstances of the case, to grant the exemption. For granting such exemption, the defendant who died should have remained exparte, either without filing the written statement or after filing the written statement. It is clear from the language of the said rule that the order of exemption shall be passed before a judgment in the case is pronounced. For granting such exemption, the defendant who died should have remained exparte, either without filing the written statement or after filing the written statement. It is clear from the language of the said rule that the order of exemption shall be passed before a judgment in the case is pronounced. The relevant portion of the said rule reads that the court `may exempt the plaintiff' and `judgment may, in such case pronounced.' That part of the sub rule says that the order of exemption should precede the judgment to be pronounced in the suit." (emphasis supplied) 29. For the reasons aforesaid, we are of the opinion that the High Court had rightly interpreted the provision of Order XXII Rule 4 (4) CPC and accordingly held that the decree passed by the trial court on 20th of December, 2002, in O.S. No. 3946 of 1999 was a nullity in the eye of the law as the defendant had died during the pendency of the suit for specific performance of the contract for sale and no exemption was sought at the instance of the plaintiff/appellant to bring on record the heirs and legal representatives of the defendant before the judgment was pronounced.” 5. In view of the ratio of the judgment supra, the judgment and decree under challenge in the present appeal, being against a dead person, is nullity. This Court, therefore, is not left with any alternative except to quash the impugned judgment and decree and to remand the case to the lower appellate Court for fresh disposal after dealing with the issue of substitution of legal representatives of deceased respondent-proforma defendant No.3 Smt. Dwarka Devi or grant exemption to the plaintiff from substitution of her legal representatives, in accordance with law. 6. In view of what has been said hereinabove, the judgment and decree under challenge in this appeal is ordered to be quashed and set aside. The trial Court to decide the appeal afresh, after deciding the question of abatement of the appeal, if any, on the death of respondent-defendant No.3 Dwarka Devi or substitution of her legal representatives/grant of exemption to appellant-plaintiff from substitution of her legal representatives as the case may be. The parties through learned counsel representing them are directed to appear in the lower appellate Court on 7th December, 2015. The parties through learned counsel representing them are directed to appear in the lower appellate Court on 7th December, 2015. Records be sent back to the lower appellate Court forthwith so as to reach there well before the date fixed. The appeal stands disposed of accordingly. Pending application(s), if any, shall also stand disposed of.