ORDER
Lokeshwar Prasad, J.
1. This order shall govern the disposal of an application, filed on behalf of defendant No.1 under Section 151 of the Code of Civil
Procedure,1908(hereinafter referred to as ‘the CPC’), praying for the dismissal of the suit, filed by the plaintiff, on the ground that the same stands abated due to the default on the part of the plaintiff in not bringing on record the LRs of deceased defendant No.14, namely, Mrs. Gurbachan Kaur within the prescribed time limit.
2. The facts relevant for the disposal of the above mentioned application, briefly stated, are that one Shri Jit Singh was a member of the East Punjab Railway Refugee Rehabilitation and House Building Co-operative Society Limited. He was allotted a piece of land on account of his being member of the above mentioned Society. The plaintiff Shri Sukhcharan Singh has filed the present suit claiming himself as one of the successors of said Shri Jit Singh. The plaintiff, in the present suit has prayed for the following reliefs:-
a) that a decree for declaration be passed in favour of the plaintiff and against the defendant thereby declaring that the sale deed/lease deed dated 5.3.75 which was executed favouring the defendant No.1 by defendant No.4 and/or defendant No.6 relating to plot No.B-16, Block-II, E.P.R. Refugee Rehabilitation and House Building Society, and known as also Greater Kailash Enclave-II, New Delhi is illegal, ultra-vires, ineffective, bad-in-law cannot be enforced and in any manner does not confer any lease hold rights or any other right on defendant No.1 or otherwise the same is not binding on the plaintiff and defendants No.7 to 16;
b) that a decree for mandatory injunction be passed thereafter thereby directing the defendant No.4 and/or 6 to execute the proper and requisite sale deed in favour of the plaintiff to the extent of his share i.e. 50% alongwith either the defendants No.7 to 10 or 11 to 16 having granted the decree for declaration for cancellation of the sale deed favouring defendant No.1;
c) that a decree of possession be passed in favour of the plaintiff against the defendants No.1 to 3 and also be effected against defendants No.4 to 6 while directing therein that the actual and physical possession of the plot No.B-16, Block II, E.P.R. Refugee Rehabilitation and House Building Society, and known as also Greater Kailash Enclave-II, New Delhi be delivered to the plaintiff to the extent of their share;
d) that a decree of permanent injunction be passed in favour of the plaintiff and against the defendants No.1 to 3 thereby restraining permanently to make any construction or to raise any further construction or otherwise to enter upon any contract or otherwise to transfer the title or in any manner transfer possession except to the plaintiff and defendant No.7 to 10 or 11 to 16 or to raise any construction or to create any encumbrance on the plot bearing No.B-16, Block II, E.P.R. Refugee Rehabilitation and House Building Society, and known as also Greater Kailash Enclave-II, NewDelhi;
e) that a decree of mandatory injunction be passed in favour of the plaintiff and against the defendants No.1 to 3 thereby directing to demolish and remove all sort of construction whatsoever has been raised on their risks and costs;
f) that the costs of the suit be also awarded to the plaintiff; and
g) Any other relief which this Court may deem fit and proper in the circumstances of the case may also be granted to the plaintiff.
3. The claim of the plaintiff in the present suit, has been resisted by defendants 1,2,3,4,6,12 & 13 who have filed written statements. On the pleadings of the parties the learned predecessor of this Court vide order dated 6.8.84 has framed the following issues:-
1) Whether the suit has been properly valued for the purposes of Court fees and jurisdiction and for the relief claim by the plaintiff? OPD-1(Onus objected to)
2) Whether the present suit is within time? OPD-1
3) Whether the suit is bad for non-joinder of parties as per the preliminary objection taken by defendant No.1? OPD
4) Whether the suit is liable to be dismissed for want of notice under Section 53(A) and (B) and Section 90 of the Delhi Co-opera-
tive Societies Act and if so to what effect? OPD-1
5) Whether the plaintiff has a locus standi to file the present suit? If, not to what effect? OPD-1 (Onus objected to)
6) Whether the defendant No.1 is the adopted daughter and nominee of Jeet Singh? If, so to what effect? OPD-1
7) Whether the plaintiff is entitled to the relief claimed in the suit?
8) Relief.”
4. Smt. Mohinder Kaur, who initially was defendant No.1 expired and her legal heir Shri Harbans Singh has been brought on record vide order dated the 15th November, 1994, passed by the learned predecessor of this Court in IA 9114/92 and IA 9115/92.
5. In the application (IA 8052/90) it is stated that after the filing of the suit Smt.Gurbachan Kuar(defendant No.14) died somewhere in the year 1982 and as the plaintiff has not brought on record the legal representatives of Smt.Gurbachan Kaur(defendant No.14), the present suit, filed by the plaintiff, stands abated and the same be dismissed with costs.
6. The plaintiff has filed a detailed reply to the above mentioned application. In the reply, filed on behalf of the plaintiff, it is stated that defendant No.14 has not filed any written statement and has also failed to appear and contest the suit. It is stated in the reply that the above said defendant was not interested in contesting the suit or to oppose the pronouncement of judgment in favour of the plaintiff. It is prayed that the plaintiff may be exempted from substituting the legal heirs of deceased defendant No.14 and the application filed on behalf of defendant No.1 be
dismissed with costs.
7. I have heard the learned counsel for the parties and have also carefully gone through the documents/material on record. The learned counsel for defendant No.1/applicant, during the course of arguments, stated that defendant No.14 Smt.Gurbachan Kaur died in the year 1982 and as the plaintiff has failed to brought on record the LRs of the above said defendant, the present suit filed by the plaintiff stands abated and the same is liable to be dismissed with costs. On the other hand the learned counsel for the plaintiff stated that defendant No.14 Smt.Gurbachan Kaur has already been proceeded ex-parte in the present proceedings vide order dated 4.3.82 and she has not filed any written statement and as such is not opposed to the pronouncement of judgment in favour of the plaintiff. It was stated by him that no relief in the present proceedings has been claimed against the above said defendant. It was submitted by him that in the presence of the above facts this Court may exempt the plaintiff from substituting the legal heirs of deceased defendantNo.14 and the above application, filed on behalf of defendant No.1,be dismissed being devoid of substance.
8. The only question for the consideration before this Court is whether sub-rule (4) of Order 22 Rule 4 CPC, which empowers the Court to exempt the plaintiff from the necessity of substituting the legal representatives of a non-contesting defendant can be invoked in the facts and circumstances of the present case. The above said sub-rule has been inserted by the Code of Civil Procedure (Amendment) Act 1976, which was based on the recommendations of the Civil Justices Committee. The Civil Justices Committee had recommended that after the trial had commenced it should be open to the Court to absolve the plaintiff from the necessity to substitute the representative of the defendant who did not, in his life time filed a written statement or who having done so did not appear to contest at the hearing. It was considered as device to avoid useless substitution of representatives on the death of a party.
9. The words “whenever it thinks fit” occurring at the beginning of subrule (4) are comprehensive enough to take within its sweep any stage of the suit for exercise of the discretion vesting in the Court under it till, of course, the judgment is delivered and there is no apparent reason to limit or curtail the scope of these words. It is a cardinal rule of construction of statutes that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous then no more can be necessary than to expound those words in their ordinary and natural sense. The golden rule of construction as enunciated by Lord Wensleydale is that in constructing wills, and indeed statutes and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency, but no further. (See Craies on Statute Law, 7th Edition at pages 84-85).
10. In my opinion, the Legislature has put two conditions while applying the provisions of O.22 R.4(4) CPC, and they are – (1) that the above said provision will apply in a case where a defendant has failed to file a written statement, or he having filed it, has failed to appear and contest the suit at the hearing, and (2) that this provision will apply where no order of abatement has been recorded in the case. If the abatement order has already been recorded by the Court, then the provisions of O.22, R.4(4) CPC shall not apply. However if the aforesaid conditions are fulfillled, the Court can apply provisions of O.22 R.4(4) CPC at any time before the delivery of judgment.
11. In the present suit, filed by the plaintiff, it is not in dispute that deceased defendant No.14 Smt.Gurbachan Kaur has already been proceeded exparte vide order dated 4.3.82 passed by the learned predecessor of this Court. It is also not in dispute that the above said defendant has not contested the claim of the plaintiff as no written statement on her behalf has been filed in the present proceedings. Moreover, no relief has been claimed in the present proceedings by the plaintiff against the above said defendant. In the presence of the above facts the correctness of which is not disputed by the parties, there is no escape from the conclusion that deceased defendant No.14 Smt. Gurbachan Kaur was least interested in contesting the suit and, therefore, in my opinion, it is a fit case for the exercise of discretion in favour of the plaintiff and exempt him from the necessity of substituting the legal representatives of the deceased defendant No.14.
12. In view of the above discussion the question of the abatement of the present suit does not arise and the application (IA 8052/90), filed on behalf of defendant No.1, deserved to be dismissed. Accordingly, the same is dismissed with no order as to costs. The plaintiff is exempted from substituting the legal representatives of the deceased defendant No.14 Mrs.Gurbachan Kaur in the present proceedings. Let the amended memo of parties be filed within four weeks.
IA stands disposed of in above terms.