JUDGMENT : 1. The suit for declaration and permanent injunction was filed by the petitioner against the defendants-respondents before the Court of Assistant Collector, Jaipur (hereinafter referred to as “the Trial Court”) but during the pendency of the said suit, one of the defendants i.e. defendant No. 12 Mst. Soni has expired in the year 1981. Hence under these circumstances, the petitioner submitted an application on 25.06.1983 before the Trial Court indicating there that after service of notice, neither the defendant No. 12 appeared nor any written statement was filed. It was also stated in the application that she was not having any legal representatives, hence under these circumstances, a request was made for deleting the name of the defendant No. 12-Mst. Soni from the array of cause title of the suit. The aforesaid application filed by the petitioner was decided by the Trial Court on 23.12.1983 and the fact was recorded that Mst. Soni expired and this fact came to the knowledge of the petitioner on 21.8.1982 while the application was submitted by him on 25.06.1983 and the learned trial Court was of the view that the application was submitted after a lapse of time, hence the suit was treated as abated vide impugned order dated 23.12.1983. 2. Aggrieved by the aforesaid order, the petitioner submitted an appeal before the Revenue Appellate Authority (for short, ‘RAA’), however, the same was dismissed vide judgment dated 12.10.1995. The petitioner unsuccessfully challenged the aforesaid order by way of filing the second appeal before the Board of Revenue (for short, “the Board”) but the same was also rejected vide order dated 28.07.2000. Aggrieved by all the three judgments passed by the Courts below, the petitioner has approached this Court by way of filing this petition under Article 226 of the Constitution of India. 3. Learned counsel for the petitioner submits that the order dated 23.12.1983 passed by the Trial Court is per se illegal and the same is not sustainable in the eye of law because after the death of the one of the defendants, the entire suit cannot be treated as abated as other defendants were there on record and right to sue was surviving. Counsel submits that the defendant No. 12 did not put in appearance before the Court inspite of service of summons and she did not submit any written statement, hence under these circumstances, the suit could not have been treated as abated to her extent or permission could have been granted for substitution of her legal representatives (for short, “LRs”). Counsel submits that since the said defendant died issueless and she was not having any legal representatives, hence under these circumstances, an application was submitted by the petitioner for deleting her name from the array of cause title of the suit filed by the petitioner. Counsel submits that going beyond the provisions contained under the Code of Civil Procedure, the entire suit has been treated as abated and the same has been rejected. Counsel submits that in view of the submissions made hereinabove, the impugned orders passed by the Courts below are not sustainable in the eye of law and the same are liable to the quashed and set aside. In support of his contention, he has placed reliance upon the judgment passed by this Court in the case of Girdhari Lal and Ors. Vs. Laxminarain, reported in 1988(1) RLR 324 . 4. Per contra, learned counsel for the respondents opposed the arguments raised by counsel for the petitioner and submitted that the fact with regard to death of defendant No. 12 Mst. Soni was well within the knowledge of the petitioner but no application for substitution was submitted by him within the statutory period of limitation and time barred application was submitted by the petitioner after passing of the considerable time but without submitting an application for condonation of delay. Counsel submits that under these circumstances, the Court below has not committed any error in treating the suit as abated. Hence, interference of this Court is not warranted. 5. Heard and considered the submissions made at Bar and perused the material available on record. 6. This fact is not in dispute that the suit for declaration and permanent injunction was filed by the petitioner against the 15 defendants out of which defendant No. 12-Mst. Hence, interference of this Court is not warranted. 5. Heard and considered the submissions made at Bar and perused the material available on record. 6. This fact is not in dispute that the suit for declaration and permanent injunction was filed by the petitioner against the 15 defendants out of which defendant No. 12-Mst. Soni did not appear before the Trial Court inspite of service of notice of summons and she did not submit any written statement to the plaint submitted by the petitioner and in the meantime, she has expired and after some time of her death, an application was submitted by the petitioner on 25.06.1983 for deleting her name from the array of cause title of the suit. The learned trial Judge vide impugned order dated 23.12.1983 has rejected the entire suit by recording a finding that no application for substitution was submitted by the petitioner and the application in question was submitted after expiry of the period of limitation. 7. The main question for consideration is whether on the non-substitution of legal representatives of some of the defendants during pendency of the suit, the entire suit would stand abated or it will be so only in respect of the particular deceased defendant. This question has been answered in favour of the plaintiff by the Hon’ble Apex Court in the case of Delhi Development Authority Vs. Diwan Chand Anand and Ors. This question has been answered in favour of the plaintiff by the Hon’ble Apex Court in the case of Delhi Development Authority Vs. Diwan Chand Anand and Ors. reported in 2022 SCC Online SC 855 and it has been held in para 31.1 to 31.3 as under:- “(31.1) The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives; (31.2) If there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants (Order 22 Rule 2); (31.3) where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. Where within the time limited by law no application is made under sub-rule 1 of Order 22 Rule 4, the suit shall abate as against the deceased defendant; 8. The same view has been followed by the Hon’ble Apex Court in the case of Siravarapu Appa Rao and Ors. Vs. Dokala Appa Rao, reported in 2022 Live Law (SC) 845. 9. In the considered opinion of this Court, where there are more than one defendants, the entire suit cannot be held to be abated on the death of the one of the defendants. 10. The other issue in this petition is whether the suit filed by the plaintiff stands abated after the death of one of the defendants who remained ex-parte and did not submit written statement to the plaint? 11. Here in this case the defendant No. 12 Mst. Soni chose not to appear before the trial court inspite of service of notice upon her and she had not submitted any written statement, hence she remained ex-parte and in the meantime she expired. 11. Here in this case the defendant No. 12 Mst. Soni chose not to appear before the trial court inspite of service of notice upon her and she had not submitted any written statement, hence she remained ex-parte and in the meantime she expired. When the petitioner submitted an application for deleting her name from the cause title of the suit, the trial Court rejected the whole suit by treating it to be abated. When the deceased defendant No. 12 Mst. Soni had not appeared to contest the suit or filed written statement, the entire suit should not have been dismissed as abated after her death. Substitution of legal representatives of such a defendant could be legitimately dispensed with by the trial Court in view of the provisions contained under sub-rule (4) of Rule 4 of CPC which reads as under:- “4. Procedure in case of death of one of several defendants or of sole defendant-(1)– (3) ** * (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 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.” 12. The trial Court has failed to follow the above procedure contained under Order 22 Rule 4 CPC. This power of exemption was available to the Trial Court, the same could and ought to have been exercised by it without dismissing the suit as abated. 13. This Court at this stage briefly trace the history of amendment of Order 22 Rule 4 CPC only to highlight the purpose underlying the same. The Law Commission had, despite noticing that many of the High Courts had made local amendments to incorporate sub-rule (4) to Rule 4 of Order 22 of CPC, made its recommendations against a similar incorporation. This Court at this stage briefly trace the history of amendment of Order 22 Rule 4 CPC only to highlight the purpose underlying the same. The Law Commission had, despite noticing that many of the High Courts had made local amendments to incorporate sub-rule (4) to Rule 4 of Order 22 of CPC, made its recommendations against a similar incorporation. In the 27th Report of the Law Commission of India, on the amendment to the Code of Civil Procedure, 1908, the Commission noted as under:- “Order XXII, rule 4 – relaxation of The question whether the court should have power to grant exemption in respect of the requirement of substitution in a proper case has been considered. Local amendments giving such power have been made by the High Courts of Calcutta, Madras, Orissa, etc., in respect of a defendant who has failed to appear and contest the suit. It is, however, felt that such a change should not be made, as it would impinge upon the rule that litigation should not proceed in the absence of the heirs of a person who is dead. These local Amendments have not, therefore, been adopted”. 14. In the 54th Report of the Law Commission, the matter was once more taken up for consideration by the Commission. The report notes in Chapter 22 as under:- “Order 22, Rule 4 – power to relax – whether should be given 22.2. The first point concerns Order 22 Rule 4, under which non-substitution of a legal representative leads to abatement of the suit. The question whether the Court should, in a proper case, have power to grant exemption in respect of the requirement of substitution of the legal representative was considered in the earlier Report. The Commission noted that local amendments giving such power had been made by the High Courts of Calcutta, Madras, Orissa, etc., in respect of a defendant who has failed to appear and contest the suit. It however, felt that such a change should not be made, as it would impinge upon the rule that litigation should not proceed in the absence of the heirs of a person who is dead. These local Amendments were not therefore, adopted. 22.3 We considered the matter further. It however, felt that such a change should not be made, as it would impinge upon the rule that litigation should not proceed in the absence of the heirs of a person who is dead. These local Amendments were not therefore, adopted. 22.3 We considered the matter further. At one stage we were inclined to add sub-rule (4) in Order 22, Rule 4 as follows:- “(4) The Court, whenever it seems fit, may exempt the plaintiff from the necessity to substitute the legal representative of any defendant against whom the case has been allowed to proceed ex parte or who has failed to file his written statement or who, having filed it, has failed to appear and contest at the hearing, and the judgment in such a case may be pronounced against such defendant notwithstanding the death of such defendant, and shall have the same force and effect as if it had been pronounced before the death took place.” 22.4 We have however, come to the conclusion that any such amendment would amount to passing a decree against a dead man and would be wrong in principle. Hence no change is recommended”. 15. Interestingly, the Amendment that followed the 54th Law Commission Report of 1973, substantially introduced Order XXII Rule 4(4) to the Code of Civil Procedure, vide s.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 was 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 XXII 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 XXII has been inserted accordingly”. 16. The Joint Committee, accordingly, inserted the following provision in the Amendment Bill, which was later on incorporated through the Amendment. “73 Amendment of Order 22-In the First Schedule, in Order XXII,–(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 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 and shall have the same force and effect as if it has been pronounced before death took place.” 17. It appears from the above that 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 Mst. Soni. This Court has no doubt that the view taken by the trial Court that, failure to bring the legal representatives of deceased Mst. Soni did result in abatement of the suit cannot be 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 CPC. 18. The learned trial judge has committed an error in treating the entire suit abated as other defendants were available there on the record and the right to sue survived against them and even this fact has also been overlooked by both the first and second Appellate Court, and the orders impugned have been passed which are per se illegal and the same are not sustainable in the eye of law. 19. 19. For the reasons aforestated, the writ petition stands allowed and the impugned orders passed by the Courts below are quashed and set aside and the suit is restored to its original number. The matter is remitted back to the Assistant Collector for fresh adjudication on it merits and in accordance with law. 20. Parties are directed to appear before the Assistant Collector, Jaipur on 05.04.2024. The Assistant Collector, Jaipur is expected to expedite the trial of the suit looking to the fact that the suit was filed by the plaintiff/petitioner way back in the year 1982. 21. It is clarified that this Court has not expressed any opinion on the merits of the case and the parties would be at liberty to put their evidence and arguments before the trial Court. 22. Stay application and all pending application(s), if any, also stand disposed of.