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2024 DIGILAW 2568 (MAD)

P. Parameshwari v. Subbathal (Died)

2024-11-08

V.LAKSHMINARAYANAN

body2024
ORDER : V. LAKSHMINARAYANAN, J. 1. This is a truly unfortunate case. The litigation has been languishing for the past 27 years and that too, at the level of trial. The parties have been litigating only on the peripheries without being in a position to find the result of the litigation. 2. For the sake of convenience, the parties will be referred to as per their rank in the suit. 3. This is a suit for partition. Originally, one Sornathal filed O.S.No.392 of 2006 on the file of Additional District Munsif, Tiruppur seeking for partition and separate possession. That suit was dismissed as withdrawn, constraining her sister one Subbathal to present this suit for the very same relief. 4. For the sake of ready understanding, the genealogical tree is given below. 5. The dispute relates to the properties that were left behind by Ramasamy Gounder. There is no dispute that Ramasamy Gounder had two sons and three daughters. The plaintiff, pleading that Ramasamy Gounder had died intestate and his wife having predeceased, the plaintiff and the defendants 1 to 4 have 1/6th share individually and defendants 5 and 6 are entitled to 1/6th share in common. Defendants 5 and 6 are the legal heirs of one Velusamy, deceased son of Ramasamy Gounder. 6. The plea of defendants 5 and 6 is that Ramasamy Gounder had executed a "WILL" in favour of Velusamy bequeathing all the properties that he possessed in favour of the said Velusamy. They added that Velusamy died in the year 1992 and even during his lifetime, on the strength of the "WILL", he had alienated the properties which are the subject matter of the suit in favour of several third parties. Defendants 2 to 4 viz., the siblings of the plaintiff had no objection for the suit being decreed as prayed for. In fact they filed a memo submitting to the decree. The first defendant Rasappa Gounder did not contest the suit and remained exparte. So too was the situation with respect to the defendants 2 to 4. They initially remained exparte. Thereafter the exparte decree was set aside and then they filed a memo stating that they are submitting to the decree. The contest was only at the instance of the defendants 5 and 6. 7. Issues were framed and the parties went for trial. They initially remained exparte. Thereafter the exparte decree was set aside and then they filed a memo stating that they are submitting to the decree. The contest was only at the instance of the defendants 5 and 6. 7. Issues were framed and the parties went for trial. As the relationship between the parties was admitted and since the "WILL" was projected by the defendants 5 and 6 to defeat the claim of the plaintiff, the learned trial Judge called upon the defendants 5 and 6 to depose first and thereafter directed the plaintiff to tender evidence. It is not in dispute that the said defendants tendered evidence by examining D.W.1 to D.W.4. Of whom, D.W.2 and D.W.3 are the attesting witnesses and D.W.4 is said to be a purchaser of the property. The defendants marked Exs.B1 to B17. 8. Having completed their side of evidence, it was now the turn of the plaintiff. The original plaintiff Subbathal entered the witness box and filed her proof affidavit. Thereafter, she went to meet her maker. Therefore, her evidence was eschewed. Her son Palanichamy deposed as P.W.1. Another person was also examined as P.W.2. The plaintiff's evidence were closed and the matter was posted for arguments. 9. I have to narrate another circumstance which intervenes. The plaintiff Subbathal wanted to introduce two documents in I.A.Nos.646 of 2010. Those two documents are said to be photostat copies of the notice issued by Sornathal (4th defendant) to Saraswathi and Selvakumar (defendants 5 and 6) and the alleged reply notice issued by defendants 5 and 6 to Sornathal. She pleaded that those two documents had been filed as plaint documents in O.S.No.362 of 1994 filed by Sornathal for partition. 10. Learned District Munsif at Tiruppur was pleased to allow the application on 29.02.2012. Aggrieved by the same, the defendants 5 and 6 moved this Court by way of a revision in C.R.P.(PD) No.1707 of 2012. The said revision came to be allowed on 28.03.2019 holding that, as the plaintiff had not complied with the requirements of Section 65 of the Indian Evidence Act, she is not entitled to let in evidence on those documents. Thereafter, the matter came back before the Trial Court. 11. Yet again, the parties were constrained to approach this Court by way of C.R.P.No.504 of 2024. Thereafter, the matter came back before the Trial Court. 11. Yet again, the parties were constrained to approach this Court by way of C.R.P.No.504 of 2024. The said revision was at the instance of the 4th defendant Sornathal, who had filed an application in I.A.No.640 of 2023 seeking to re-open the case and to adduce evidence on behalf of defendants 2 to 4. The defendants 5 and 6 stoutly opposed the application stating that as the fourth defendant had not filed any written statement, her plea to re- open and recall is untenable. The learned Additional District Munsif at Tiruppur, to whom the suit stood transferred by lapse of time accepted the plea of the defendants 5 and 6 and rejected the petition. The revision challenging the order passed in I.A.No.640 of 2023 came to be dismissed on 05.03.2024 holding that, as the petitioner had not filed any written statement in the suit nor having raised any specific plea, she is not entitled to let in any oral or documentary evidence. Soon after the dismissal of the revision, Sornathal passed away. This gave rise to the present round of litigation. 12. There is no dispute that the 7th defendant is the legal heir of Sornathal. An application was filed to implead him as the legal representative in I.A.No.367 of 2024. This application was allowed and the amended plaint copy was filed by the plaintiff on 16.07.2024. On that date, the learned District Munsif adjourned the matter for the written statement of the 7 th defendant and also for additional written statement of defendants 2 to 6. Aggrieved by the said order of the learned District Munsif, the defendants 5 and 6 are before this Court in C.R.P.No.3031 of 2024. 13. Feeling aggrievedd at the 7 th defendant being permitted to file a written statement, a memo came to be filed by the defendants 5 and 6 stating that as Sornathal had remained exparte, there is no question of her legal heir viz., the 7 th defendant filing a written statement. This memo of objections came to be rejected by the learned Additional District Munsif by an order dated 18.07.2024. Hence, the revision in C.R.P.No.3032 of 2024. 14. As is expected in a proceeding which is pending for nearly three decades and more, the 1 st defendant also passed away pending the litigation. His son had predeceased him. This memo of objections came to be rejected by the learned Additional District Munsif by an order dated 18.07.2024. Hence, the revision in C.R.P.No.3032 of 2024. 14. As is expected in a proceeding which is pending for nearly three decades and more, the 1 st defendant also passed away pending the litigation. His son had predeceased him. Therefore, his daughter-in-law and two grandchildren filed an application in I.A.No.131 of 2024 seeking to implead themselves as legal representatives of the deceased 1 st defendant. This was opposed by the defendants 5 and 6 on the ground that an application under Order XXII Rule 4 ought to have been filed and since the plaintiff had filed an application to exempt her from impleading the legal representatives of the deceased 1 st defendant and that having been allowed, an application at the instance of the legal representative is not maintainable. The learned Trial Judge found favour with the plea and dismissed I.A.No.131 of 2024. Hence the revision in C.R.P.No.3813 of 2024. 15. As all the three revisions arise out of the same proceedings, I clubbed the matters by an order dated 26.09.2024 and listed them for hearing today. 16. I heard Mr.R.Sivaprakasam for the civil revision petitioners in C.R.P.Nos.3031 of 2024 and 3032 of 2024 , Mr.N.S.Suganthan for the civil revision petitioner in C.R.P.No.3893 of 2024, Mr.Sunil Kumar for respondents 1 to 7, who are the legal heirs of the plaintiffs and Mrs.Chitra Sampath, Senior Counsel for respondents 8 to 10. 17. Mr.Sivaprakasam pleads that since the 4 th defendant had remained exparte and had not filed her written statement, her legal representative, the 7 th defendant is not entitled to file a written statement. As an alternative plea, he pleads that the 4 th defendant, even as early as in 2010, had filed a memo submitting to the decree and therefore there is no necessity for the 7 th defendant to file a written statement at all. He states that this position is no longer res integra and relies upon the judgments in (a) Muhammed Naina Maraccair and Others -vs- Ummanaikani Ammal and Others (AIR 1930 Madras 593) (b) Kizhiakalathil Puthan Veetil Thavazhi Karnavan -vs- Manikat Variath Ukkali Varissiar's son Sankunni and Others (AIR 1935 Madras 52). (c) Arijit Mittra -Vs- Goutam Mitte (AIR 2008 Calcutta 273), and (d) Ramgopal and Others -vs- Khivraj and Others (AIR 1998 Rajasthan 98). 18. (c) Arijit Mittra -Vs- Goutam Mitte (AIR 2008 Calcutta 273), and (d) Ramgopal and Others -vs- Khivraj and Others (AIR 1998 Rajasthan 98). 18. Per contra, Mrs.Chitra Sampath, learned Senior Counsel relies upon a judgment of the Supreme Court in Abdul Razak (Dead) through LRs and Others -vs- Mangesh Rajaram Wagle and others [ (2010) 2 S.C.C.432 ] to plead that the newly impleaded defendant is entitled to file a written statement and the only bar is that the said defendant cannot take a plea independent of that urged by the deceased defendant. Supporting this plea, Mr.N.S.Suganthan cites a decision of the Bombay High Court in Gopaldas & Co. -Vs- Gopaldas Corporation (AIR Online 2020 Bom 3075). 19. Mr.N.S.Suganthan appearing for the civil revision petitioners in C.R.P.No.3893 of 2024 urges that his client's petition to implead themselves as the legal representatives of the deceased 1 st defendant was dismissed on the ground that the plaintiff had been granted exemption under Order XXII Rule 4(4) of the Code of Civil Procedure (CPC). He argues that the said order does not prevent the legal representatives to file an application to come on record. 20. This revision too is opposed by Mr.Sivaprakasam. Relying upon a judgment of this Court in V.Veerannan & Another -vs- Varadarajan and Others [2017(2) Madras Weekly Notes (Civil) Page 12] , he says that the ratio that flows out of this judgment is that, if exemption is granted under Order XXII Rule 4(4) of CPC, the legal representatives are not entitled to file an application to come on record. 21. I have carefully considered the submissions of all the learned counsels. I am dividing this judgment into two parts, the first part dealing with C.R.P.Nos.3031 of 2024 and 3032 of 2024 and the later part dealing with C.R.P.No.3893 of 2024. 22. Even at the outset, I have to remind myself that the proceeding I am dealing with, is a suit for partition. In a suit for partition, it is trite that every party is treated either as plaintiff or as the defendant. 22. Even at the outset, I have to remind myself that the proceeding I am dealing with, is a suit for partition. In a suit for partition, it is trite that every party is treated either as plaintiff or as the defendant. This is because, though the plaintiff might have launched the litigation, during the course of the proceedings if the defendant who has a share in the property feels his interest is being jeopardised by the plaintiff in either withdrawing the suit or in the manner in which the suit is being conducted, he can always transpose himself and continue the said proceedings as a plaintiff. I shall now deal with the issue by remembering this fundamental principle of law in mind. 23. The narration of the aforesaid facts go to show that the plaintiff had originally succeeded in obtaining an exparte preliminary decree for partition. Subsequently, the defendants took out an application to set aside the exparte decree and the said exparte decree was set aside on 22.12.2008. This was on the basis of the application filed by the defendants 5 and 6 in I.A.No.178 of 2006. Being a suit for partition, the first proviso to Order IX Rule 13 of CPC operated and therefore, the decree could not have been set aside only as against the defendants 5 and 6 and had to be set aside against all. The 4 th defendant took out a similar application in I.A.No.197 of 2005. 24. The exparte decree having been set aside, the suit was restored on to its original position. Thereafter, the 4 th defendant had filed a memo submitting to the decree on 07.02.2010. It is not in dispute that the 4 th defendant passed away in May 2024. Thereafter, the plaintiff took out an application in I.A.No.367 of 2024 to bring on record her son one Eswaran as the legal representative of the deceased 4 th defendant. This application was allowed on 28.06.2004. The plaintiff carried out the amendment and also filed the amended plaint copy. It is here that the cause of action for the first revision arises. The learned Judge passed the following order on 16.07.2024. “Written statement of 7 th defendant and additional written statement of defendants 2 to 6. Call on 18.07.2024. No further adjournment.” 25. The plaintiff carried out the amendment and also filed the amended plaint copy. It is here that the cause of action for the first revision arises. The learned Judge passed the following order on 16.07.2024. “Written statement of 7 th defendant and additional written statement of defendants 2 to 6. Call on 18.07.2024. No further adjournment.” 25. Taking note of the fact that the 7 th defendant has been given an opportunity to file a written statement, the defendants 5 and 6 filed a memo stating the aforesaid grounds opposing the opportunity granted to the 7 th defendant to file a written statement. The learned Judge rejected this memo and received the written statement filed by the 7 th defendant. Mr.Sivaprakasam, relying upon the authorities referred to supra pleads that, as the 4 th defendant had submitted to a decree, her legal representative is not entitled to file a written statement. Therefore, necessarily I have to refer to the authorities cited by him, in order to see whether those judgments laid down the proposition as pleaded by Mr.Sivaprakasam. 26. The first of the judgment of Wallace, J. in Muhammed Naina Maraccair and Others -vs- Ummanaikani Ammal and Others (AIR 1930 Madras 593). That was a case where the legal representative sought to project a new case than what was projected by the deceased defendant. This plea was nipped by this Court by holding that, as a legal representative he is not entitled to plead any independent right or claim against the plaintiff. The Court held that he has to confine himself to the four corners of the pleadings as had been originally pleaded by the deceased defendant. This judgment merely follows the fundamental principle of civil law that a legal representative cannot take a plea different than that had been urged by the deceased defendant. It is not far to see why this principle was developed. The plaintiff presents a suit as against the defendant pleading a specific case. The defendant would have filed written statement denying or accepting the case. If on his/her death, the legal representative is permitted to raise a new plea claiming a new or different right, then the plaintiff will have to fight a litigation on pleas which he had never originally presented opposing the plaint. The defendant would have filed written statement denying or accepting the case. If on his/her death, the legal representative is permitted to raise a new plea claiming a new or different right, then the plaintiff will have to fight a litigation on pleas which he had never originally presented opposing the plaint. Mid way through the litigation, a plaintiff cannot be called upon to start a new front which he never contemplated when he presented the plaint. In fact, it is on this premise that Walsh, J. in Kizhiakalathil Puthan Veetil Thavazhi Karnavan -vs- Manikat Variath Ukkali Varissiar's son Sankunni and Others (AIR 1935 Madras 52) held that a legal representative, if permitted to depart, vary, or contradict from the original stand of the person for whom he has entered appearance as legal representative, then there will be no end to the litigation. 27. Mr.Sivaprakasam heavily relies upon the judgment in Arijit Mittra -Vs- Goutam Mitte (AIR 2008 Calcutta 273) to plead that an impleaded defendant cannot and should not be permitted to file a fresh written statement. On the basis of this judgment, he argues that a legal representative cannot present a written statement at all. Though the head note seems to indicate as to what Mr.Sivaprakasam argues, a careful perusal of the judgment shows the head note has not captured the view of the learned Judge in a correct perspective. That was a case where the newly impleaded defendant (called as substituted defendant as per the practice in the Calcutta High court), had attempted to raise a plea that subsequent events had arisen, which he is entitled to bring to the notice of the Court by way of a fresh written statement. The legal representative further argued that he is not bound by the written statement that had been filed by his predecessor on whose behalf he has been impleaded as a legal representative. This very unique plea of the newly impleaded party was rejected by the learned Judge in Para 9 of the order. He pointed out the distinction between Order XXII of the Code and Order I Rule 10 of the Code. The distinction being, if a party is impleaded under Order XXII of the Code, he is bound by the defence that has been raised by the person who had initially filed his written statement. He pointed out the distinction between Order XXII of the Code and Order I Rule 10 of the Code. The distinction being, if a party is impleaded under Order XXII of the Code, he is bound by the defence that has been raised by the person who had initially filed his written statement. If he is impleaded under Order I Rule 10 of the Code, then he is not even impleaded in the capacity as a legal representative, but in his individual capacity. In case of the former, the learned Judge adopted the reasoning of Wallace, J. and that of Walsh, J. cited above and held that a legal representative cannot exceed the written statement originally filed by the deceased defendant. The learned Judge further pointed out that, if a person had been newly impleaded, as he has been brought on record as a fresh party, he can file an independent written statement. Hence, this judgment too does not lay down the proposition urged by Mr.Sivaprakasam. 28. The next judgment relied upon by Mr.Sivaprakasam is the view of the Rajasthan High Court in Ramgopal and Others -vs- Khivraj and Others (AIR 1998 Rajasthan 98). A learned Single Judge in that case adopted the reasoning in Kizhiakalathil Puthan Veetil Thavazhi Karnavan -vs- Manikat Variath Ukkali Varissiar's son Sankunni and Others (AIR 1935 Madras 52) and held in Para 7, that a legal representative substituted in the place of a deceased defendant cannot set up a new case. 29. I have absolutely no quarrel with Mr.Sivaprakasam that a defendant who is brought on record as a legal representative cannot exceed the pleas taken by the person on whose behalf he has been impleaded. Yet, I am not able to travel the distance, which Mr.Sivaprakasam wants me to do, to hold that the said defendant is not entitled to file a written statement at all. It is one thing to say that a newly impleaded defendant is bound by the plea taken by his predecessor and entirely another to plead that he is not entitled to file a written statement at all. 30. The Code permits a legal representative to file a written statement, but directs that his written statement must be confined to the capacity in which he is brought on record. 30. The Code permits a legal representative to file a written statement, but directs that his written statement must be confined to the capacity in which he is brought on record. This is clear from a mere perusal of Order XXII Rule 4(2) of the Code, which declares that any person who is brought on record in terms of Order XXII Rule 4(1) of the Code can take a defence appropriate to his character as a legal representative of the deceased defendant. The very fact that the CPC under Order XXII Rule 4(2) states that a substituted defendant is entitled to make a defence shows that the Code permits the said defendant to file a written statement. Such written statement should be circumscribed by the capacity in which he is brought on record. At this juncture, I have to hold that the view taken by Menon, J. in Gopaldas & Co. -Vs- Gopaldas Corporation (AIR Online 2020 Bom 3075) cited supra directly applies to the facts of the present case. 31. A combined reading of the aforesaid authorities with Order XXII Rule 4(2) of CPC only leads me to the conclusion that the plea of Mr.Sivaprakasam that a newly impleaded party is not entitled to file any defence does not require any acceptance at the hands of this Court. 32. I now go to the second point of Mr.Sivaprakasam that the deceased 4 th defendant had submitted to the decree by filing a memo before the trial Court on 07.02.2010 and therefore the 7 th defendant is not entitled to file a written statement. He states, when a party has submitted to the decree there is no necessity for the defendant to take a defence at all. This corollary submission requires a probe. What is the effect of a defendant filing a submit decree memo in a partition suit ? It means that the defendant not only concedes to the claim of the plaintiff, but also requests the Court that the suit may be decreed and her share in the property may also be declared. It is yet another thing that the Court might not order the share unless and until the said defendant pays a separate Court fee claiming the relief. The non- payment of Court fee does not mean that the defendant who filed a submit decree memo is not entitled to a share. It is yet another thing that the Court might not order the share unless and until the said defendant pays a separate Court fee claiming the relief. The non- payment of Court fee does not mean that the defendant who filed a submit decree memo is not entitled to a share. The 4 th defendant, by filing a memo in the present suit, had conceded to the 1/6 th share of the plaintiff and at the same time, pleaded that she is also entitled to 1/6 th share. This implies that she has denied the exclusive right of claim by the defendants 5 and 6. 33. A perusal of the written statement filed by the 7 th defendant shows that he has not taken any new plea for me to reject the written statement. In Para 3 of the written statement, he specifically states that as Sornathal, his mother, is entitled to one share out of the six shares, the same may be allotted to him. He has actually clarified by way of Paras 4 and 5 that the plea of exclusive title as claimed by the defendants 5 and 6 is not acceptable to him. 34. I am not in a position to understand as to how this written statement filed by the 7 th defendant resiles or militates against the position taken by the deceased 4 th defendant. The 4 th defendant too wanted a share and submitted to the decree. As pointed out above, the "submit to decree" implied that she has denied the claim of exclusive right of defendants 5 and 6. Therefore, I am not in a position to agree with the plea of Mr.Sivaprakasam that the written statement filed by the 7 th defendant runs contrary to the submit decree memo filed by the 4 th defendant. 35. When this was pointed out by me, Mr.Sivaprakasam took a plea that, what could not be done by the plaintiff is indirectly being done by the 7 th defendant. He relies upon the judgment of this Court in C.R.P.No.1707 of 2012 dated 28.03.2019. The argument, being that the plaintiff wanted to introduce, two lawyer's notices dated 19.05.1994 and 22.05.1994 and that having been rejected by this Court, it is not open to the 7 th defendant to file the same. 36. He relies upon the judgment of this Court in C.R.P.No.1707 of 2012 dated 28.03.2019. The argument, being that the plaintiff wanted to introduce, two lawyer's notices dated 19.05.1994 and 22.05.1994 and that having been rejected by this Court, it is not open to the 7 th defendant to file the same. 36. Looking at the order of Mr.Justice N.Sathish Kumar, it becomes clear the learned Judge did not reject the documents as pleaded by Mr.Sivaprakasam and holding that they are non-existent. The learned Judge had rejected those documents on the ground that the plaintiff had not laid the foundation as required under Section 65 of the Indian Evidence Act. In case the learned Judge had held that the documents are non-existent and are acts of fabrication, then perhaps it would have been open to Mr.Sivaprakasam to plead that the 7 th defendant is not entitled to produce the same. 37. The 7 th defendant is the son of the plaintiff in O.S.No.362 of 1994.Two documents annexed to the written statement were filed as documents in the said suit. I pointed out to Mr.Sivaprakasam that the exchange of notices were between the deceased Sornathal and defendants 5 and 6, and it is flummoxing as to how Subbathal the plaintiff could have produced the said documents. This is because she is not a party to the said transaction. However, the same cannot be said against the 7 th defendant. The 7 th defendant, being the son of the plaintiff in O.S.No.362 of 1994, is certainly entitled to produce the documents produced by his mother in the said suit. 38. Further more, I have come to the conclusion that a newly impleaded defendant is entitled to file written statement as long as they do not run contrary to his status as a legal representative. It is here that I have to refer to Order VIII Rule 1A of the Civil Procedure Code. The said provision casts a duty on the defendant to produce documents which are in his possession in a list annexed to the statement. The Code calls upon him to produce his documents when he files his written statement. What has been done in the present case by the 7 th defendant is only discharging the duty cast upon him under the said provision. The Code calls upon him to produce his documents when he files his written statement. What has been done in the present case by the 7 th defendant is only discharging the duty cast upon him under the said provision. I should hasten to add that I am not going to give any finding on the genuineness or relevancy of those documents. The aforesaid discussion is only confined to the right of the defendant in order to produce the documents. I am entering this caveat because I do not want to foreclose the right of the defendants 5 and 6 to plead that the notice dated 19.05.1994 and the reply notice dated 24.05.1994 are acts of fabrication. 39. Now turning upon the second portion of the judgment viz., dealing with C.R.P.No.3893 of 2024. The 1 st defendant was set exparte. The plaintiff took out an application in terms of Order XXII Rule 4 of the Code pleading exemption from bringing the legal representatives on record. The learned Judge, perhaps following the view of Justice M.Srinivasan in Elisa and Others -vs- A.Doss ( AIR 1992 Mad 159 ) passed an order exempting the plaintiff from bringing on record the legal representatives of the deceased 1 st defendant Rasappa Gounder. The Court had come to know the death of Rasappa Gounder on 12.02.2019. However, the memo was filed on 09.12.2022. Taking into consideration the fact that the 1 st defendant had remained exparte, the plaintiff filed an application in I.A.No.974 of 2022 pleading that the legal heirs of the deceased exparte defendant, Rasappa Gounder need not be brought on record. 40. It is pertinent to point out that the defendants 5 and 6 who are today contesting the death of Rasappa Gounder as having died in 2006, had made an endorsement that they have no objection to the application being allowed. The plaintiff in I.A.No.974 of 2022 had specifically pleaded that Rasappa Gounder died on 12.12.2019. I am afraid, I cannot allow the clients of Mr.Sivaprakasam to approbate and reprobate. When an application in I.A.No.967 of 2022 was filed by the plaintiff that Rasappa Gounder had died on 12.12.2019, the defendants 5 and 6 had accepted this factual position. Today, in order to get the implead application dismissed, they would take an unique plea that Rasappa Gounder died in the year 2006. 41. When an application in I.A.No.967 of 2022 was filed by the plaintiff that Rasappa Gounder had died on 12.12.2019, the defendants 5 and 6 had accepted this factual position. Today, in order to get the implead application dismissed, they would take an unique plea that Rasappa Gounder died in the year 2006. 41. The Civil Revision petitioners are the daughter-in-law and grandsons of the deceased Rasappa Gounder. They have pleaded that the husband of the first petitioner and the father of the petitioners 2 and 3 viz., one Palanichamy had predeceased Ramasamy Gounder and that on the death of Ramasamy Gounder, they succeeded to the estate. Hence, they filed an application in I.A.No.131 of 2024 under Order I Rule 10(2) of CPC seeking to implead themselves as parties to the suit. To this application, the 4 th plaintiff / P.W.1 filed his counter. In the said counter, he admitted to the relationship between the deceased Ramasamy Gounder and his cousin Palanichamy and the petitioners. Insofar as the defendants 5 and 6, who were arrayed as defendants 15 and 16 in the said application, they also filed an independent counter. A careful perusal of the counter shows that they did not dispute the relationship between Rasappa Gounder, Palanichamy and the civil revision petitioners. They took two pleas viz., the first plea being legal heirship certificate and the death certificate of Rasappa Gounder had not been produced before the Court and therefore the petitioners are not entitled to be brought on record. The second plea being, as exemption had been granted under Order XXII Rule 4(4) to the plaintiff, the petitioners are not entitled to come on record. 42. The learned Trial Judge, after hearing the arguments, had accepted the pleas taken by the defendants 5 and 6, dismissed the petition. Hence, I have to consider the effect of Order XXII Rule 4(4). I commenced the judgment that this is a suit for partition, where the parties are specially placed. By invoking Order XXII Rule 4(4), the plaintiff merely avoided the unfortunate circumstance of her suit being dismissed as abated. This does not mean that the doors of the Courts are firmly shut for the legal heirs to file an application to come on record. 43. By invoking Order XXII Rule 4(4), the plaintiff merely avoided the unfortunate circumstance of her suit being dismissed as abated. This does not mean that the doors of the Courts are firmly shut for the legal heirs to file an application to come on record. 43. It is here I have to agree with Mr.Sivaprakasam that Order I Rule 10 is not an appropriate provision to be invoked for the purpose of bringing the legal representative on record. Order XXII Rule 4 enables the plaintiff to file an application to bring on record the legal representative of the deceased defendant on record. The plaintiff filed a petition under Order XXII Rule 4(4) and obtained an order of exemption. Therefore, I have to see whether any other provision in the said chapter is available for the purpose of filing the application at the instance of the legal representatives of the deceased exparte defendant. 44. It is here I will have to refer to Order XXII Rule 10 of the Code. A careful perusal of the wordings of Order XXII Rule 10 shows that it applies when an application under Order XXII Rule 3 and Order XXII Rule 4 cannot be filed. This is clear from the wordings found under Order XXII Rule 10, which reads that “ in other cases of assignment, creation or devolution of any interest during the pendency of a suit”. 'In other cases' implies that it excludes Order XXII Rule 3 and 4. In terms of Order XXII Rule 4(1) which reads that in case an application is made in this behalf, the Court shall cause legal representatives to be made as parties. It also states that, in case an application is not made in time, the suit will stand abated ie., if no application is filed under Order XXII Rule 4(1), Order XXII Rule 4(3) comes into operation. The plaintiff, in order to avoid the unpleasant situation or Order XXII Rule 4(3) operating in her suit, invoked Order XXII Rule 4(4) of CPC. It is common practice that the plaintiff takes out an application to bring on record the legal representatives of the defendant. However, if the legal representatives of the defendant want to come on record, they can certainly do so as there is no bar under the Code. 45. It is common practice that the plaintiff takes out an application to bring on record the legal representatives of the defendant. However, if the legal representatives of the defendant want to come on record, they can certainly do so as there is no bar under the Code. 45. Mr.Sivaprakasam relies upon a judgment of this Court in V.Veerannan & Another -vs- Varadarajan and Others [2017(2) Madras Weekly Notes (Civil) Page 12] to urge that this Court has held that if exemption is granted under Order XXII Rule 4(4) of CPC, an application is not maintainable to implead the legal representatives. 46. I have carefully gone through the judgment. There are two distinguishing features in the said judgment. First, that was a suit for declaration and for injunction filed by the plaintiff and secondly, the Court did not dismiss the application on the ground that the application is not maintainable. It had dismissed the said petition on the ground that the learned District Munsif, who allowed the application, had failed to consider the scope of Order XXII Rule 4(4). In other words, the learned Judge had held that since the learned District Munsif failed to consider the scope of the said provisions, she ought not to have allowed the application. My reading of the judgment certainly does not lead me to the conclusion that if exemption is granted under Order XXII Rule 4(4), then the legal representatives of the persons so exempted, are not entitled to file an application. 47. It is here that I will refer to the judgment of the Karnataka High Court in Kenchappa Kallu Kurubar -vs- Balasaheb Kalagouda Patil and Others (1988 SCC Online Kar 159). Mr.Justice Chandrakantharaj Urs had held that, in a suit for partition, the mere fact that exemption had been granted, does not mean the legal representatives cannot come on record. He held that a person, whether he has filed a written statement or not, unless and until his relationship with the person on whose death he enters appearance is denied, he is entitled to file an application to come on record. 48. Applying this principle to the facts of the present case, the relationship of Rasappa Gounder with the deceased Ramasamy Gounder is not in dispute. Similarly, the relationship of the deceased legal representatives of Palanichamy, the predeceased son of Ramasamy Gounder with the civil revision petitioners is also not in dispute. 48. Applying this principle to the facts of the present case, the relationship of Rasappa Gounder with the deceased Ramasamy Gounder is not in dispute. Similarly, the relationship of the deceased legal representatives of Palanichamy, the predeceased son of Ramasamy Gounder with the civil revision petitioners is also not in dispute. In the event ,the suit is decreed, then the civil revision petitioners will be entitled to 1/6 th share in common that would have fallen to the share of Rasappa Gounder. Hence, their presence as parties to the suit is essential. Since the judgment of the Karnataka High Court having been delivered in a suit for partition, I will very respectfully adopt the said judgment to the facts of the present case. 49. I also have to take note of the very reasonable submission that was made by Mr.N.S.Suganthan that in case the civil revision petition is allowed, the civil revision petitioners would only want to be impleaded as parties to the suit and would remain in that capacity and would not seek for reopening of evidence or file a written statement. In fact, Mr.Sivaprakasam states that in case the civil revision petitioners are brought on record, his clients would not have any objection, but they would seriously object if an opportunity is granted to the civil revision petitioners to set up a new plea that had not been set up by deceased Rasappa Gounder. 50. In the light of the above discussion, the following orders are passed : (1)C.R.P.Nos.3031 and 3032 of 2024 are dismissed. C.R.P.No.3893 of 2024 is allowed to the extent that the civil revision petitioners will be brought on record only as the legal representatives of the deceased Rasappa Gounder. I record this statement that as they have waived their right to file written statement. (2) Mr.Sunil Kumar, learned counsel appearing for the plaintiff agrees that the plaintiff will file the amended plaint copy impleading the civil revision petitioners in C.R.P.No.3893 of 2024 as parties on or before 15.11.2024. (3) The chief examination and the marking of documents shall take place on that very day. The defendants 5 and 6, in case they are interested to cross examine the 7 th defendant, shall do so between 18.11.2024 to 22.11.2024. (4) As the 7th defendant has already filed a written statement, his proof affidavit shall be received by the learned Judge on18.11.2024. The defendants 5 and 6, in case they are interested to cross examine the 7 th defendant, shall do so between 18.11.2024 to 22.11.2024. (4) As the 7th defendant has already filed a written statement, his proof affidavit shall be received by the learned Judge on18.11.2024. (5) The learned Additional District Munsif is requested to hear the arguments of both sides and conclude the arguments on or before 29.11.2024. He shall pronounce a judgment in the suit on or before 10.01.2025 and indicate the result of the suit to this Court immediately thereafter. (6) I am giving time bound directions because the suit has been languishing for the past 27 years and the parties have gone to meet their maker, one after another, without seeing the end of the litigation. (7) Call this case for compliance on 20.01.2025. 51. In result, C.R.P.Nos.3031 and 3032 of 2024 are dismissed. C.R.P.No.3893 of 2024 is allowed. No costs. Consequently, connected miscellaneous petitions are closed.