Ram Lal & Ors vs Jethu Ram & Ors. ...
2021 Latest Caselaw 2511 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CMP(M) No. 2061 of 2019 with

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Review Petition No. 22 of 2021

Reserved on: 26.03.2021 Date of decision 31.03.2021

Ram Lal & Ors. ....Applicants/Petitioners Versus

Jethu Ram & Ors. .....Non-appellants/Respondents

Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.

r Yes.

Whether approved for reporting?1

For the Applicants/:

Petitioners Mr. Sudhir Thakur, Sr. Advocate with Mr. Karun Negi, Advocate.

For the Non-applicants/:

Respondents Mr. Ramakant Sharma, Sr. Advocate with Mr. Basant Thakur, Advocate, for respondent No. 1. .

Tarlok Singh Chauhan, Judge

By medium of this application, the applicants have

sought condonation of 56 days delay in filing of the review

petition. A perusal of paragraphs 2 and 3 of the application

disclose sufficient cause which prevented the applicants from

filing the appeal within the prescribed period of limitation.

Accordingly, the aforesaid delay is condoned. The application

stands disposed of.

Whether the reporters of the local papers may be allowed to see the Judgment?Yes

Review Petition be registered.

Review Petition No. 22 of 2021

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2. By medium of this petition, the petitioners have

sought review of judgment dated 22.08.2019 passed in RSA No.

38 of 2007 solely on the ground that the judgment so passed is a

nullity on account of failure of the appellant to bring on record

the legal heirs of deceased defendant Dhani Ram son of Sewak

3.

r to Ram, who was arrayed as respondent No. 7(a) in RSA No. 38 of

2007.

It is vehemently contended by Shri Sudhir Thakur,

learned Senior Advocate duly assisted by Shri Karun Negi,

Advocate, that it is more than settled that a decree passed in

favour of a dead person is nullity in the eyes of law.

4. On the other hand, Shri Ramakant Sharma, learned

Senior Advocate duly assisted by Shri Basant Thakur, Advocate

submits that as a matter of fact Dhani Ram was not the original

party and it was his father Sewak Ram who was party to the suit.

Dhani Ram son of Sewak Ram and Pushpa Devi daughter of

Sewak Ram had been impleaded as party-respondents after the

death of Sewak Ram. It is more than settled that the object of

bringing on record the legal representatives of deceased

defendant on record under Order XXII Rule 4, is to have the

estate of the deceased represented in the suit, which in the

instant case is sufficiently represented by other legal

representative i.e. Pushpa Devi. It is further contented that since

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Sewak Ram did not contest the suit by filing a written statement,

then his name ought to have been deleted or is deemed to be

deleted under the provisions of Order XXII Rule 4 (4) CPC.

I have heard, learned counsel for the parties and

have gone through the records of the case.

5.

It is apposite to reproduce the provisions of Order

XXII, Rule 4 (4) of the Code of Civil Procedure, which reads as

under:-

"4.Procedure in case of death of one of several defendants or of sole defendant.- (1) to (3) xxx

(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."

6. Order XXII, Rule 4 (4) supra postulates that when one

of two or more defendants in a suit 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. The object of

bringing the legal representative of the deceased defendant on

record under Order XXII Rule 4 is to have the estate of the

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deceased represented in the suit. If despite being receipt of

information of the death of one of the defendants, the plaintiff

omits to bring his legal representative on record in the manner

prescribed by law, the suit would abate as against the deceased

defendant. This is what sub-rule (3) of Rule 4 ordains.

7.

    Civil   Procedure
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Sub-rule (4) was inserted in Rule 4 by the Code of

(Amendment) Act, 1976 and

discretionary power on the Court to exempt a plaintiff from conferred

bringing the legal representative of a deceased defendant on

record, who has either not filed written statement or having filed

it, has abstained from contesting the suit by his non-appearance.

Once exemption is granted, the judgment in the suit may be

pronounced against all the defendants including the deceased

defendant and not withstanding his death, such judgments shall

have the same force and effect as if the judgment has been

pronounced before the death of the deceased defendant.

Therefore, sub-rule (4) is in the nature of an exception to the

general rule laid down in sub-rule (3).

8. Shri Sudhir Thakur, learned Senior Advocate duly

assisted by Mr. Karun Negi, Advocate, for the petitioner, has

placed reliance on certain judgments of the Hon'ble Supreme

Court, which need to be noticed.

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9. In Zahirul Islam vs. Mohd. Usman and others

(2003) 1 SCC 476, three Judges Bench of the Hon'ble Supreme

Court held that exemption from bringing on record the legal

representatives of deceased defendant is not automatic as would

be evident from observations made in paras 5 to 7 of the

judgment, which read as under:-

5. It would be necessary to refer to Order XXII Rule 4 of

the Code of Civil Procedure, 1908, insofar as it is relevant,

which reads as under:

"4.Procedure in case of death of one of several defendants or of sole defendant.- (1) to (3) xxx

(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."

6. A perusal of sub-rule (4) , extracted above, shows that a plaintiff may be exempted from the necessity of substituting the legal representatives of a defendant who has failed to file a written statement or who, having filed it, failed to appear and contest the suit at the hearing and that, in such a case,, the judgment may be pronounced against the said defendant notwithstanding the death of

such defendant and it shall have the same force and effect as if the judgment has been pronounced before the

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death took place.

7. In the instant case, it is stated by the learned counsel appearing for the appellant that no permission

contemplated under sub-rule (4) was obtained from the court exempting the plaintiff from bringing on record the legal representative of deceased defendant no 2. From the order under challenge also, it does not appear that any

such permission was sought or granted by the court. In this view of the matter, the order under challenge cannot be sustained. It is, accordingly, set aside. The appellant

was,therefore, entitled to be brought on record in the suit.

10. Thereafter, the matter came up for consideration in

T. Gnanavel vs. T. S. Kanagaraj and another (2009) 14 SCC

294, wherein while distinguishing the judgment in Zahirul

Islam's case (supra), it was held that exemption under Order

XXII Rule 4 (4) for bringing on record the legal representatives of

the deceased defendant can only be prior to the pronouncement

of the judgment and not thereafter and once that be so, the

judgment of the High Court passed in ignorance of the death is a

nullity.

11. Strong reliance has been placed by Shri Sudhir

Thakur, Senior Advocate, on the judgment rendered by the

Hon'ble Supreme Court in Sushil K. Chakravarty (Dead)

through LRs. vs. Tej Properties Private Limited (2013) 9

SCC 642, wherein it was held that there has to be a conscious

decision by the Court to grant exemption to plaintiff upon

satisfaction that parameters specified under Order XXII, Rule 4

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(4) CPC have been fully met.

12. Lastly, reliance is placed upon the judgment of the

Hon'ble Supreme Court in Gurnam Singh (D) through LRs &

Ors. vs. Gurbachan Kaur (D) through LRs & Ors. 2017 SC

2419, wherein it was held that it is a fundamental principle of

13.

r to law that a decree passed by the Court against a dead person is a

nullity.

To counter the judgments of learned counsel for the

petitioner, Shri Ramakant Sharma, learned Senior Advocate, duly

assisted by Shri Basant Thakur, Advocate, has relied upon the

judgment of the Hon'ble Supreme Court in Mata Prasad

Mathur (Dead) By LRs. vs. Jwala Prasad Mathur and

others (2013) 14 SCC 722, wherein the Hon'ble Supreme

Court discussed the 27th Report of the Law Commission of India

on the amendment to the Code of Civil Procedure, 1908, the

Commission had incorporated the relaxation of Order XXII, Rule

4 CPC in respect of local amendments made by the High Courts

of Calcutta, Madras, Orissa, in respect of a defendant, who has

failed to appear and contest the suit. However, the amendment

that followed the 54th Law Commission Report of 1973

substantially introduced Order XXII Rule 4 (4) to the CPC vide

Section 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

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included.

14. 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) and it was observed as under:-

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

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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. Amendment of Order 22.- In the First Schedule,

in Order 22, (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."

15. After taking into consideration the aforesaid

recommendation of the Joint Committee, the Hon'ble Supreme

Court thereafter held as under:-

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

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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.

16. However, this entire discussion is still academic in

nature as it is more than settled that if the Court is satisfied that

the estate of the deceased is adequately represented meaning

thereby the interests of the deceased party are properly

represented before the Court, there can be no abatement.

17. Reference in this regard can conveniently be made to

the judgment of the Hon'ble Supreme Court in N. Jayaram

Reddi and Anr. vs. The Revenue Divisional Officer and

Land Acquisition Officer AIR 1979 SC 1393.

18. In view of the aforesaid discussion, there is no error

apparent on the face of the record as the legal representatives of

Dhani Ram son of Shri Sewak Ram were not required to be

brought on record as he was only representing the estate of

Sewak Ram, the original defendant, who had not chosen to

contest the suit by filing written statement and his estate

otherwise was adequately represented by his daughter Pushpa

Devi.

19. Consequently, there is no merit in this petition and

the same is accordingly dismissed, leaving the parties to bear

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their own costs. Pending applications, if any, also stand disposed

of.

    31.03.2021                    (Tarlok Singh Chauhan)
    (sanjeev)                                 Judge




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