[2013] 1 S.C.R. 1106

MATA PRASAD MATHUR (DEAD) BY LRS. v.

JWALA PRASAD MATHUR & ORS.

(Civil Appeal No. 1457 of 2013)

FEBRUARY 20, 2013

[T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]

Code of Civil Procedure, 1908 - Or.22, r.4(4) - Suit for declaration, partition and injunction - Death of a none contesting defendant - Failure of the plaintiffs-respondents to bring on record the LRs of such defendant - Held: Did not result in abatement of the suit - Requirement of substitution of the LRs of such non-contesting defendant could be legitimately dispensed with by the Court by virtue of the power D of exemption abundantly available to it under Or.22, r.4(4).

The question that arose for determination in the present appeal was whether the suit filed by the plaintiffsrespondents seeking a decree for declaration, partition E and injunction against the appellants abated on the failure of the plaintiffs to file an application for substitution of the Legal Representatives of a deceased defendant 'V'.

The trial Court, when approached by the plaintiff for deletion of the name of the deceased defendant 'V' and setting aside of the abatement, held that the suit had F 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 G plaintiff. The Court accordingly set aside the judgment and order passed by the trial Court with the observation that the demise of 'V' and failure of the plaintiff to bring his legal representatives on record did not affect the

H 1106

PRASAD MATHUR & ORS.

maintainability of the suit. The High Court affirmed that A order, and hence the instant appeal.

Dismissing the appeal, the Court

HELD: 1. This Court is inclined to agree with the order of the First Appellate Court that the suit had not B abated no matter for a reason different from the one that prevailed with that Court. It is common ground that 'V'- 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 C defendant could be legitimately dispensed with by the trial Court in view of the provisions of Order XXll Rule 4 Sub- Rule 4. The High Court 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 D 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. [Paras 3, 4]

[1109-E-F; 1110-C-D] E

2. The history of the amendment of Order XXll, Rule 4 may be traced to highlight the purpose underlying the same. The Legislature incorporated the provision of Order XXll 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 G defendant-'V'. The view taken by the First Appellate Court and the High Court that, failure to bring the legal representatives of deceased did not result in abatement of the suit can be more appropriately sustained on the strength of the power of exemption that was abundantly H

A available to the Courts below under Order XXll Rule 4 (4) of the CPC. [Paras 5, 9) [1110-E; 1113-E-G]

3. In the case at hand, the legal representatives of the deceased defendant 'V' have already been brought on

8 record in place of their uncle (V's brother) who died

issueless. They can, therefore, represent the estates left behind by both the brothers. 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 C approach in setting aside abatement of suits. The trial

court shall now proceed to dispose of the suit on merits expeditiously. [Para 10 & 11) [1113-H; 1114-A-C]

CIVIL APPELLATE JURISDICTION : Civil Appeal No.

D 1457 of 2013.

From the Judgment & Order dated 21.04.2006 of the High Court of Madhya Praesh, Judicature Jabalpur, bench at Gwalior in Second Appeal No. 1454 of 2005.

WITH

Contempt Petition (C) No. 11 & 435 of 2011 in SLP (C) No. 21276 of 2006.

F Shiv Sagar Tiwari, Sangeeta Gaur, Mahabir Singh Magla, Vikas Mehta for the Appellants.

lndu Malhotra, Vivek Jain, Chinmayee Chantra, Kush Chaturvedi, Vikas Mehta, Puneet Jain, Christi Jain, Pratibha Jain for the Respondents.

The Judgment of the Court was delivered by

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 A 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 B 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 c 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 D 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 E 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 F of the provisions of Order XXll 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

A (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 B 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, rigtly noticed this C aspect in its order albeit the manner in which the High Court

dealt with the same is not all tbat 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 D dismissal of the suit as abated.

5. We may at this stage briefly trace the history of the amendment of Order XXll, Rule 4 only to highlight the purpose underlying the same. The Law Commission had, despite E noticing that many of the High Courts had made local

amendments to incorporate Sub-Rule (4) to Rule 4 to Order XXll, 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, F the Commission noted at p.210,

"Order XX/I, rule 4 - relaxation of

The question whether the court should have power to grant exemption in respect of the requirement of G 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 H made, as it would impinge upon the rule that litigation

. should not proceed in the absence of the heirs of a 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 te 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 c 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 D 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 shouJd not be made, as it would impinge E 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 F follows:-

"(4) The Court, whenever it seerris fit, may exempt the plaintiff from the necessity to substitute the legal representative of any defendant against whom the G 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 H

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 C Commission Report of 1973, substantially introduced Order

XXll 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 XXll Rule 4(4) was not included. The Bill was then referred to the Joint Committee and a recommendation D 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 XX/I 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 H provision may be made in the Code itself. New sub-rule

3A in rule 4 al Order XX/I 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 XX/I,-

(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 C 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 D 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 XXll Rule 4(4) with a E 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 F 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 G suit can be more appropriately sustained on the strength of the power of exemption that was abundantly available to the Courts below under Order XXll Rule 4 (4) of the CPC.

10. It is important to note that the legal representatives of H

A 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 8 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 th"e 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 E are, therefore, dismissed.

8.8.8.

Appeal & Contempt Petitions dismissed.