Mahendra Singh vs Anil Kumar
2023 Latest Caselaw 2084 Patna

        IN THE HIGH COURT OF JUDICATURE AT PATNA
           CIVIL MISCELLANEOUS JURISDICTION No.156 of 2021
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1.1. Sanjay Kumar Singh Son of Late Mahendra Singh R/o Mohalla- Maksudpur, Sachipatti, Post and P.S.- Hajipur, District- Vaishali, Bihar. 1.2. Sanjeev Kumar Son of Late Mahendra Singh R/o Mohalla- Maksudpur, Sachipatti, Post and P.S.- Hajipur, District- Vaishali, Bihar. 1.3. Ajay Kumar S/o Late Mahendra Singh R/o Mohalla- Maksudpur, Sachipatti, Post and P.S.- Hajipur, District- Vaishali, Bihar. 1.4. Asha Devi D/o Late Mahendra Singh R/o Mohalla- Maksudpur, Sachipatti, Post and P.S.- Hajipur, District- Vaishali, Bihar. 1.5. Nisha Devi D/o Late Mahendra Singh R/o Mohalla- Maksudpur, Sachipatti, Post and P.S.- Hajipur, District- Vaishali, Bihar. 1.6. Baby Devi D/o Late Mahendra Singh R/o Mohalla- Maksudpur, Sachipatti, Post and P.S.- Hajipur, District- Vaishali, Bihar.

... ... Petitioner/s

Versus

1. Anil Kumar S/o Teras Rai R/o. Mohalla- Subhash Chowk, Ambedkar Nagar, Near Dr. Suchita Caudhary, behind the house of Laxmi Ray, Hajipur, Vaishali, Bihar.

2. Rakesh Kumar S/o Teras Rai R/o. Mohalla- Subhash Chowk, Ambedkar Nagar, Near Dr. Suchita Caudhary, behind the house of Laxmi Ray, Hajipur, Vaishali, Bihar.

3. Rajesh Kumar S/o Teras Rai R/o. Mohalla- Subhash Chowk, Ambedkar Nagar, Near Dr. Suchita Caudhary, behind the house of Laxmi Ray, Hajipur, Vaishali, Bihar.

4. Manju Devi Teras Rai R/o. Mohalla- Subhash Chowk, Ambedkar Nagar, Near Dr. Suchita Caudhary, behind the house of Laxmi Ray, Hajipur, Vaishali, Bihar.

5. Kamleshwari Devi W/o Jaddu Rai R/o. Mohalla- Subhash Chowk, Ambedkar Nagar, Near Dr. Suchita Caudhary, behind the house of Laxmi Ray, Hajipur, Vaishali, Bihar.

6. Prabhawati Kumari W/o Teras Rai R/o. Mohalla- Subhash Chowk, Ambedkar Nagar, Near Dr. Suchita Caudhary, behind the house of Laxmi Ray, Hajipur, Vaishali, Bihar.

7. Mahmood Miya S/o Hasib Miya R/o. Mohalla- Jahori Bazar, P.s. and Post-

Hajipur, District- Vaishali, Bihar.

8. Md. Amanullah S/o Bararat Miya R/o. Mohalla- Jahori Bazar, P.s. and Post-

Hajipur, District- Vaishali, Bihar.

... ... Respondent/s Patna High Court C.Misc. No.156 of 2021 dt.03-05-2023

Appearance :

For the Petitioner/s : Mr. Prakash Chandra, Advocate For the Respondent/s : Mr. Ratan Kumar Sinha, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA ORAL JUDGMENT Date : 03-05-2023

Heard learned counsel for the parties.

2. This Civil Miscellaneous application is filed under

Article 227 of the Constitution of India against the Order dated

16.10.2019 passed by learned Sub-Judge XVII in Title Suit No.

161 of 1998 whereby the learned trial Court dismissed the

application filed by the petitioner / plaintiff to substitute the

legal representatives of the defendant no. 1 who failed to file the

written statement and also failed to appear and contest the suit.

3. The brief facts of this case are that the original

petitioner Mahendra Singh (now represented through legal heirs

on his death) is the plaintiff who filed a Title Suit bearing Title

Suit No. 161 of 1998 for declaration of title and also prays that

the sale deed executed in respect of the suit land may be

declared illegal and void and the same is not binding upon the

plaintiff. Despite service of notice defendants did not appear and

the suit was proceeded ex parte against defendant nos. 1, 2, 3,

and 4. However, defendant nos. 3 and 4 appeared and filed their

written statement. The ex parte order against them was recalled. Patna High Court C.Misc. No.156 of 2021 dt.03-05-2023

Defendant no. 1 despite service of notice through all modes

neither appeared nor filed her written statement. The plaintiff

came to know about the death of defendant no. 1 on the basis of

the application dated 16.01.2019 filed by the defendant and

affidavit of Kamleshwari Devi dated 28.01.2019 filed by

defendant no. 2. On knowing the same an application under

Order 22 Rule 4 (4) of the Code of Civil Procedure was filed on

behalf of the plaintiff for exempting the plaintiff from

substituting the legal representatives of defendant no. 1 and also

prayed to delete the name of defendant no. 1 from the array of

the parties. However, the trial Court dismissed the said

application by observing that against the defendant no. 1 ex

parte proceeding has been initiated, so proceedings under Order

XXII Rule 4 (4) CPC cannot be initiated against the defendant

no. 1 and the same is not sustainable in the eye of law.

4. Learned counsel for the petitioners submits that it

is well settled that Order XXII Rule 4 (4) CPC vests power in

the Court to consider the matter of exemption from necessity of

substituting legal representatives of defendants who failed to file

written statement or who having filed it, failed to appear and

contest the suit at the hearing or at any stage of the suit before

the pronouncement of the judgment. He has further submitted Patna High Court C.Misc. No.156 of 2021 dt.03-05-2023

that the learned trial Court failed to appreciate the object of

Order XXII Rule 4 (4) of CPC as the whole object of it is to

avoid the unnecessary delay. Further, learned counsel for the

petitioners submits that the impugned order is liable to be set

aside by this Court in its supervisory jurisdiction.

5. On the other hand, learned counsel for the

respondents has submitted that defendant no. 1 died in the year

2005 but no substitution petition has been filed. Accordingly,

after expiry of the limitation period, the whole suit became

abated. He has further submitted that despite the full knowledge

about the death of defendant no. 1, the plaintiff failed to file the

substitution petition. Accordingly, the Court below has rightly

rejected the application of the petitioners which requires no

interference by this Court.

6. The object of the sub-rule 4 of Rule 4 of Order

XXII CPC is to avoid unnecessary delay. It confers the

discretion on the Court to dispense with the necessity of

substituting legal representatives of a defendant (i) who has

failed to file a written statement or (ii) who having filed it has

failed to appear and contest the suit. The Judgment may, in such

case, be pronounced against the said defendant notwithstanding

the death of such defendant and have the same force and effect Patna High Court C.Misc. No.156 of 2021 dt.03-05-2023

as if it has been pronounced before death took place.

7. The Hon'ble Supreme Court in T. Gnanvel Vs.

T.S. Kanagraj & Anr. (A.I.R. 2009 SC 2367) explained to the

effect that the exemption under Order 22 Rule 4 (4) of the Code

from substituting legal representatives of the defendant, must be

obtained before the pronouncement of Judgment.

8. The Hon'ble Supreme Court in the case of Mata

Prasad Mathur (Dead) by LRs. Vs Jwala Prasad Mathur &

Ors. reported in 2013 AIR SCW 3782 at paragraph 9 held as

follows:-

"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 form the necessity of substituting the leagal 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."

9. A Division Bench of this Court had considered the Patna High Court C.Misc. No.156 of 2021 dt.03-05-2023

matter in the case of Rajnath vs. Shiva Prasad, reported in

A.I.R. 1979 Patna 239 and has held that the power under

Order XXII, Rule 4 (4) of the Code can be exercised at any

stage of the suit before delivery of the judgment.

10. The same view has been taken by the Division

Bench of this Court in the Judgment in Md. S. Imam Vs. Rai

Bharat Kumar & Ors. Reported in 2000 (3) PLJR 675

wherein it has held that "Order XXII, Rule 4 (4) of the Code

vests power in the Court to consider the matter of exemption

from necessity of substituting legal representatives of

defendant/defendants, who failed to file written statement or

who having filed it failed to appear and contest the suit at the

hearing at any stage of the suit before pronouncement of the

judgment. It is not controlled by Order XXII, Rule 4 (3) of the

Code and even if the abatement has taken place, that will not

prevent the Court from exercising power under Order XXII,

Rule 4 (4) of the Code.

11. In paragraph 15 of the said judgment in Md. S.

Imam (supra), it is observed:-

"If the intention of the legislature was that the question of exemption is to be considered by the Court only before abatement has taken place, then it would have clearly indicated in sub-rule (4) and Patna High Court C.Misc. No.156 of 2021 dt.03-05-2023

would not have given a wide discretion by providing the words "whenever the Court thinks fit". The said provision leads to one interpretation that the power of exemption has to be exercised on the fulfillment of the condition mentioned therein at any stage even after the abatement has taken effect. Sub-rule (4) is an exception to sub-rule (3) and in the cases covered by sub-rule (4), the suit will not abate against the deceased defendant and the Court may render a judgment against a dead person also and that judgment will have the effect as if it was passed during his life time. In other words, sub-rule (4) is not controlled by sub-rule (3), on the other hand, sub-rule (3) has no application to the cases covered by sub-rule (4), meaning thereby in that situation, the suit will not be treated to have abated against the deceased defendant".

12. Sub-Rule (4) to Order 22, Rule 4 was inserted by

the CPC amendment Act, 1976. It covers event a defendant who

had been declared ex-parte. Sub-rule (3) will not operate in

cases where an order under sub-rule (4) is made. Sub-rule (3)

itself provides sub-rule (4) as its exception.

13. Order 22 Rule 4 (4) does not say or indicate that

an application under the said provision could be made only

before abatement of the suit and not thereafter. The provision

was intended to give wide discretion to the Court to grant such

exemption to plaintiff in appropriate case from the necessity of

substitution the legal representatives of a defendant, satisfying Patna High Court C.Misc. No.156 of 2021 dt.03-05-2023

the requirements of the said rule.

14. In sub-rule (4) of Order 22, Rule 4, no period is

prescribed for seeking exemption from the necessity of

substituting legal representatives, and such exemption could be

granted by Court in appropriate cases at any time before

pronouncing judgment. The said sub-rule is in the nature of an

exception to the general rule that, when within the given time

by law, if no application is made for substitution of the legal

representatives, the suit shall abate.

15. Taking into consideration the aforesaid facts and

circumstances, I am of the view that the impugned order of trial

Court is unsustainable. The trial court failed to exercise

jurisdiction vested in him under Order 22, Rule 4 (4) CPC.

Accordingly, this Civil Miscellaneous Application is allowed,

the impugned order passed by the trial Court is set aside and

the plaintiff / petitioner is exempted from the necessity of

substituting the legal heir of defendant No. 1.

(Sunil Dutta Mishra, J)

shweta/-

AFR/NAFR             AFR
CAV DATE             17.02.2023
Uploading Date       03.05.2023
Transmission Date