It would appear from the above that the Legislature incorporated the
provision of Order XXII 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-Virendra Kumar. We have
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
Virendra Kumar 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 XXII Rule 4 (4) of the
CPC.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1457 OF 2013
(Arising out of S.L.P. (C) No.21276 of 2006)
Mata Prasad Mathur (dead) by LRs. …Appellants
Versus
Jwala Prasad Mathur & Ors. …Respondents
Citation;(2013) 14 SCC 722
T.S. THAKUR, J.
1. Leave granted.
2. The short question that arises for determination in this appeal is
whether the suit filed by the plaintiffs-respondents seeking a decree for
declaration, partition and injunction against the appellants abated on the
failure of the plaintiffs to file an application for substitution of the
Legal Representatives of Virendra Kumar one of the defendants. The trial
Court, when approached by the plaintiff for deletion of the name of the
deceased and setting aside of the abatement, held that the suit had abated
in toto and accordingly dismissed the same. In an appeal filed by the
plaintiffs against that order, the First Appellate Court held that the
trial Court had not properly considered the issue in the light of the
nature of the averments made in the plaint and the relief sought by the
plaintiff. The Court accordingly set aside the judgment and order passed
by the trial Court with the observation that the demise of Virendra Kumar
and failure of the plaintiff to bring his legal representatives on record
did not affect the maintainability of the suit. The High Court of Madhya
Pradesh has affirmed that order, hence the present appeal.
3. Having heard learned counsel for the parties, we are inclined to
agree with the order of the First Appellate Court that the suit had not
abated no matter for a reason different from the one that prevailed with
that Court. It is common ground that Virendra Kumar-defendant was
proceeded ex parte as he had not appeared to contest the suit or file a
written statement. Substitution of the legal representatives of such a
defendant could be legitimately dispensed with by the trial Court in view
of the provisions of Order XXII Rule 4 Sub-Rule 4, which is as under:
“4. Procedure in case of death of one of several defendants or
of sole defendant.-
(1) xxxxx
(2) xxxxx
(3) xxxxx
(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.”
4. The High Court has, in our view, rightly noticed this aspect in its
order albeit the manner in which the High Court dealt with the same is not
all that satisfactory. Be that as it may, so long as the power of
exemption was available to the trial Court, the same could and ought to
have been exercised by the First Appellate Court while hearing an appeal
assailing the dismissal of the suit as abated.
5. We may at this stage briefly trace the history of the amendment of
Order XXII, Rule 4 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 to Order XXII, 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 at p.210,
“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”.
6. 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 at p.193,
”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. 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”.
7. 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 XXII 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 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”.
8. 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 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.”
9. It would appear from the above that the Legislature incorporated the
provision of Order XXII 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-Virendra Kumar. We have
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
Virendra Kumar 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 XXII Rule 4 (4) of the
CPC.
10. It is important to note that the legal representatives of Virendra
Kumar, deceased, have already been brought on record in place of Devendra
Kumar, their uncle (Virendra Kumar’s brother) who died issueless. They can,
therefore, represent the estates left behind by both Virendra Kumar and
Devendra Kumar. Grant of exemption in that view is only a matter of
maintaining procedural rectitude more than any substantial adjudication of
the matter in controversy. This Court has at any rate adopted a liberal
approach in setting aside abatement of suits.
11. In the result this appeal fails and is, hereby, dismissed. The trial
Court shall now proceed to dispose of the suit on merits as early as
possible. No costs.
Contempt Petition (C) Nos.11 of 2011 and No.435 of 2011
12. We have heard learned counsel for the parties and examined the
averments made in the contempt petitions. We do not consider it necessary
to take any further action in these petitions in which the parties appear
to be accusing each other of committing contempt of this Court. The
contempt petitions are, therefore, dismissed.
………………….……….…..…J.
(T.S. Thakur)
…………………………..…..…J.
(Gyan Sudha Misra)
New Delhi
February 20, 2013
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