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2016 DIGILAW 369 (KAR)

Angadi Srinivas Dead By L. Rs. v. M. Girija

2016-04-23

A.N.VENUGOPALA GOWDA

body2016
JUDGMENT : Though this appeal is listed in the admission category, in view of substantial question of law framed, with the consent of learned advocates on both sides, is taken up for final hearing. 2. The husband and father of the appellants – Angadi Srinivasa, was the sole defendant in O.S. No. 33/2007, on the file of the Principal Civil Judge (Jr.Dn.) at Maddur. The suit was filed by the respondent herein for passing a decree of ejectment against Sri Angadi Srinivasa and for delivery of vacant possession of the suit schedule premises. Despite service of summons, the defendant did not appear and he was placed exparte. The plaintiff got examined herself as PW.1 and marked Exs.P1 and P2. After hearing the arguments and appreciation of the record, the suit was dismissed by a judgment and decree dated 09.07.2008. 3. Assailing the said decree, the plaintiff filed, on 08.09.2008, R.A. No. 51/2008, in the Court of Civil Judge (Sr.Dn.), Maddur. The defendant/respondent died on 25.12.2010. Death of the respondent was not informed and the legal representatives of the deceased was not brought on record by the appellant. Upon hearing of the arguments, the appeal was allowed and the judgment and decree passed by the Trial Court was set aside and the suit was decreed with costs. The defendant was directed to vacate and hand over vacant possession of the suit schedule property to the plaintiff within a period of three months and pay damages of Rs.1,000/- per year from 2002, till delivery of vacant possession. Assailing the said decree, the wife and children of deceased defendant – Angadi Srinivasa, filed this appeal. 4. The substantial question of law raised for consideration is, “whether the decree passed by the Lower Appellate Court, in ignorance of the death of the respondent before it is sustainable in law?” 5. Smt. Archana Murthy, learned advocate, contended that as the sole defendant, who was the sole respondent in the appeal died during the pendency of the appeal before the Lower Appellate Court and his L.Rs. having not been brought on record, the Lower Appellate Court has committed illegality in allowing the appeal and setting aside the decree of dismissal of the suit passed by the Trial Court. She submitted that the decree passed by the Lower Appellate Court against a dead person being a nullity is liable to be declared as void. 6. having not been brought on record, the Lower Appellate Court has committed illegality in allowing the appeal and setting aside the decree of dismissal of the suit passed by the Trial Court. She submitted that the decree passed by the Lower Appellate Court against a dead person being a nullity is liable to be declared as void. 6. Sri D.S. Hosmath, learned advocate, on the other hand contended that the defendant having failed to appear and file written statement to the suit and he having been placed exparte, that in view of the provision made as per Order 22 Rule 4(4) CPC, the impugned decree is sustainable. 7. Order 22 Rule 1 CPC deals with question of abatement on the death of plaintiff or of the defendant in a civil suit. Order 22 Rule 2 relates to procedure where one of the several plaintiffs or the defendants dies and the right to sue survives. Order 22 Rule 3 deals with procedure in case of death of one of the several plaintiffs or of the sole plaintiff. Order 22 Rule 4 deals with procedure in case of death of one of the several defendants or the sole defendant. L.Rs. of the deceased can be brought on record within 90 days from the date of death as per Article 120 of schedule to the Limitation Act, 1963. The abatement takes place automatically by operation of law, without an order of Court, as is clear from sub-Rule (3) of Rule 4 CPC. If 60 days time expires after the expiry of 90 days, an application for setting aside abatement, under Article 121 of schedule to the Limitation Act, 1963 has to be made. 8. Andhra Pradesh High Court, in the case of MOHD. SAFDAR SHAREEF (DIED) PER L.RS. AND OTHERS Vs. MOHAMMED ALI (DIED) PER L.R., 1993(1) ALT 522 , explaining the meaning of the word “abatement”, has held as under: “10. The meaning of the word ‘abate’ as per Law Lexicon of Venkataramaiya’s, is “to throw down, to beat down, destroy, quash; to do away with; to put an end to, to nullity, to make void”. In view of this meaning, the appeal which has abated by operation of law, cannot be revived and the decree which has become a nullity being a decree against a dead person, cannot also be revived. In view of this meaning, the appeal which has abated by operation of law, cannot be revived and the decree which has become a nullity being a decree against a dead person, cannot also be revived. Therefore, the inescapable result of the above discussion is that the appeal before the learned single Judge has become abated and the decree passed by him is a nullity.” 9. Order 22 Rule 4(4) of CPC, provides, that in case the deceased defendant did not contest the suit and did not file written statement, the substitution may not be warranted. 10. In STATE OF PUNJAB Vs. NATHU RAM, AIR 1962 SC 89 , while interpreting the provisions of Order 22 Rule 4(3) CPC r/w Rule 11 thereof, Apex Court has held, that appeal abates as against the dead respondent, where within the time limited by law, no application is made to bring his legal representatives on record. 11. In the present case, the defendant had not filed the written statement and he was placed exparte. However, the suit was dismissed by the Trial Court. During the pendency of the appeal filed by the plaintiff, the defendant died on 25.12.2010. Exemption could have been sought before the Appellate Court, in terms of Order 22 Rule 4(4) CPC by the appellant i.e., from bringing on record the legal representatives of the defendant. A plain reading of Order 22 Rule 4(4) CPC makes it clear, that the Court is empowered to exempt a plaintiff from the necessity of substituting the legal representatives of the defendant, who has failed to file written statement or who, having filed it, has failed to appear and contest the suit at the time of hearing of the same. But, such an exemption can be granted before the judgment is pronounced by treating that the defendant was alive notwithstanding the death of the defendant and shall have the same force and effect as if it was pronounced before the death had taken place. In the instant case, the appellant in the Lower Appellate Court had not sought the exemption in terms of sub-Rule (4) of Rule 4 of Order 22 CPC, prior to the pronouncement of the judgment on 15.10.2011. 12. In the instant case, the appellant in the Lower Appellate Court had not sought the exemption in terms of sub-Rule (4) of Rule 4 of Order 22 CPC, prior to the pronouncement of the judgment on 15.10.2011. 12. The sole respondent having died during the pendency of the appeal before the Lower Appellate Court and as his legal representatives were not brought on record, the appeal abated and hence, the decree passed by the Lower Appellate Court being against a dead person is a nullity. In the result, appeal is allowed and the impugned judgment and decree are declared as null and void. Costs made easy.