ORDER
V.K. Agarwal, J.
1. This Miscellaneous Appeal is directed against the order dated 19-9-1995 in Civil Appeal No. 57-A/1992 by Fifth Additional District Judge, Sagar, whereby the appeal has been dismissed as abated.
2. The relevant facts necessary for decision of this appeal, stated in brief, are : The plaintiff/respondent No. 1 Mathura Prasad purchased the suit-property by registered sale-deed dated 16-9-1971 from defendant No. 5 Gajadhar Prasad. The suit-house was said to belong to the Joint Hindu Family property consisting of the vendor Gajadhar Prasad as well as his five other brothers, who were all made defendants in the suit. The plaintiff/respondent No. 1, therefore, prayed that the Joint Family property be partitioned and the suit-house purchased by the plaintiff Mathura Prasad may be allotted in the share of his vendor Gajadhar Prasad, defendant No. 5, who holds 1/6th share in the Joint Hindu Family property.
3. The suit was resisted by defendant Nos. 2 & 3. Defendant Nos. 1, 4, 5 & 6 remained absent despite service of summons to them and, therefore, were ordered to be proceeded ex parte, as would be clear from the order-sheets dated 16-11-1976 & 28-3-1977 of the Trial Court. The defendant No. 5 Gajadhar, the vendor of the plaintiff Mathura Prasad appeared in the suit, but he did not engage a counsel. Though he filed his written statement therein, but he admitted the claim of the plaintiff. In the later stages of suit, the said vendor remained absent and was directed to be proceeded against ex parte by order dated 5-10-1983. It may be mentioned here that the said defendant No. 5 Gajadhar Prasad was also examined by the purchaser-plaintiff Mathura Prasad as his witness. In his statement, Gajadhar Prasad supported the claim of the plaintiff Mathura Prasad and admitted that he had sold the suit-house to the plaintiff.
4. The suit of the plaintiff Mathura Prasad was partly decreed by the Trial Court by judgment dated 19-10-1983. It was held by the Trial Court that except for house standing on Khasra No. 69/1, the remaining suit-property was joint-family property. The defendants had 1/6th share each in the aforesaid remaining suit-property including the house purchased by the plaintiff Mathura Prasad. It was directed that the house sold to plaintiff Mathura Prasad by defendant No. 5 Gajadhar Prasad be allotted in his 1/6th share. It was also directed that in case the house purchased by the plaintiff Mathura Prasad was more than 1/6th share of Gajadhar Prasad, then the compensation thereof would be payable by the plaintiff to the remaining defendants, except defendant No. 5 Gajadhar Prasad. Partition of the suit-property consisting of agricultural lands was directed to be made by the Collector, Sagar, while houses included in the suit-property were directed to be partitioned by the Commissioner, to be appointed for the purpose.
5. Against the said judgment and decree, the defendants, except defendant No. 5 Gajadhar Prasad, filed an appeal before the Lower Appellate Court on 2-1-1984. Defendant No. 5 Gajadhar was made respondent No. 2 in the said appeal. During the pendency of the appeal, defendant No. 6/appellant No. 5 Hanuman Prasad died in the year 1988, while defendant No. 5/Res. No. 2 Gajadhar Prasad died in the year 1989. Admittedly, no application for bringing the L.Rs. of the said deceased Hanuman Prasad and Gajadhar Prasad was filed within 90 days of their death.
6. It further appears that the Lower Appellate Court granted several opportunities to the parties to file written arguments and ultimately by order-sheet dated 10-3-1995, it was recorded that the written arguments on behalf of the appellants have been filed and the respondents’ counsel, if so advised, may address oral arguments before the date of judgment, which was fixed on 20-3-1995. However, thereafter on 22-3-1995, the respondents’ counsel, Shri Lokras submitted written arguments and also filed an application under Order 22 Rules 3 & 4 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’ for short), marked as I.A. No. 3. In the said application, it was stated that defendant No. 6 Hanuman Prasad died in the year 1988, while the Res. No. 5 Gajadhar Prasad died in March, 1989 and since their L.Rs. have not been brought on record, the right to sue does not survive with the remaining appellants. Therefore, the appeal has abated. A reply of the said application was filed on 7-4-1995 on behalf of the appellants, while a separate application under Order 22 Rule 4 (4) of the Code was also filed on behalf of the appellants, which was marked as I.A. No. 4. Reply of the said application was filed on behalf of the respondents on 25-4-1995.
7. The learned Lower Appellate Court, by the impugned-order dismissed the appellants’ application, I.A. No. 4 under Order 22 Rule 4 (4) of the ‘Code’ and allowed the application (I.A. No. 3) holding that the appeal had abated. The appeal was accordingly dismissed by the Lower Appellate Court.
8. In this appeal, the impugned-order holding that the appeal before the Lower Appellate Court had abated on account of death of defendant No. 6/ appellant No. 5 Hanuman Prasad in the year 1988 and defendant No. 5/ Respondent No. 2 Gajadhar Prasad in the year 1989, has been assailed. It has been submitted that in the Trial Court, the defendant No. 6 Hanuman Prasad remained ex parte and did not file his written statement. Similarly, though defendant No. 5 Gajadhar Prasad appeared personally in the earlier stages of the suit, and had also filed his written statement, but he supported the claim of the plaintiff and was thus not a contesting defendant. Moreover, in the later stages of the suit, he remained absent and was directed to be proceeded against ex parte, as would be clear from order-sheet dated 5-10-1983 of the Trial Court. It was further contended that the defendant No. 5 Gajadhar Prasad not only admitted the claim of the plaintiff/respondent No. 1 Mathura Prasad, but also was examined as P.W. 4 by the plaintiff as his witness in support of his case. In his statement, defendant No. 5 Gajadhar Prasad also admitted the claim of the plaintiff/respondent No. 1 Mathura Prasad and stated that he had sold the suit-house to Mathura Prasad. Defendant No. 5 Gajadhar Prasad, therefore, did not contest the claim of plaintiff.
9. It has, therefore, been submitted that under Order 22 Rule 4 (4) of the ‘Code’, the plaintiff was not obliged to bring the L.Rs. of deceased defendant No. 5 Gajadhar Prasad or defendant No. 6 Hanuman Prasad on record and, therefore, the appeal would not be treated as abated. Therefore, their application, I.A. No. 4 under Order 22 Rule 4 (4) of the ‘Code’ should have been allowed and the application, I.A. No. 3 filed by plaintiff/respondent No. 1 in the Lower Appellate Court praying that the appeal be dismissed as abated, should have been rejected.
10. As against above, the learned counsel for Respondent No. 1 has supported the impugned-judgment, holding that the appeal has abated.
11. To appreciate the controversy between the parties, it would be useful to reproduce Order 22 Rule 4 of the Code as under :-
“Order XXII-Rule 4:
4. (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant 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.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under Sub-rule (1), the suit shall abate as against the deceased defendant.
(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.
(5) Where–
(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and
(c) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963) for setting aside the abatement and also for the admission of that application under Section 5 of the Act on the ground that he had, by reason of such ignorance sufficient cause for not making the application within the period specified in the said Act.
the Court shall, in considering the application under the said Section 5, have due regard to the fact of such ignorance, if proved.”
12. It is clear from Sub-rule (1) of Rule 4 of the Code that in case of death of one of the defendants, if there are more than one defendants or in the case of death of sole defendant, if the right to sue survives, LRs have to be brought on record by an application made in that behalf. Sub-rule (3) of Rule 4 of the Code provides that where within the time limited by law, no application is made under Sub-rule (1), the suit shall abate as against the deceased defendant. Sub-rule (4) of the Code provides that the Court, whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of the deceased/defendant :
(a) if he has failed to file a written-statement; or
(b) having filed the written-statement has failed to appear and contest the suit at the hearing;
and in such circumstances, the judgment may be pronounced against the said defendant notwithstanding his death & such a judgment shall have the same force and effect, as if it has been pronounced before his death took place. In other words, if the death occurs of a defendant, who has not filed his written-statement and has remained ex parte or of a defendant, who has though entered appearance, but has not contested the claim of the plaintiff, notwithstanding the death of such a defendant, the suit would not abate even though the LRs of the deceased are not brought on record, as is required under Rule 4 (1) of the Code. Thus, Rule 4 (4) of the Code is by way of an exception to Rule 4(1) and Rule 4 (3) of the Code providing for the necessity of bringing L.Rs. of deceased defendant on record and the abatement of the suit in case of failure to do so, under conditions laid down under the said provisions.
13. In the instant case, as noticed earlier also, the defendant No. 6 Hanuman Prasad had not filed Written Statement in the Trial Court and had remained ex parte. Therefore, so far as he is concerned, the matter was directly covered by the first limb of Rule 4 (4) of Order 22 of the Code.
14. Further, so far as deceased defendant No. 5 Gajadhar Prasad is concerned, he did not prefer an appeal before the Lower Appellate Court and was Res. No. 2 before it. It is pertinent to note that though he entered appearance in the Trial Court and did file his written-statement, yet in fact, the defendant No. 5 had admitted the claim of the plaintiff Mathura Prasad that he had sold the house to the plaintiff and had no objection to his suit being decreed. It is further to be noted that not only the defendant No. 5 Gajadhar Prasad admitted the claim of the plaintiff in his written statement, but he also appeared as a witness on behalf of the plaintiff Mathura Prasad and supported his claim in the statement recorded by the Trial Court as P.W. 4. Therefore, it is abundantly clear that Gajadhar Prasad had not contested the suit of the defendant. On the contrary, he had admitted the claim of the plaintiff Mathura Prasad. He also remained absent in the later stages of suit and was proceeded against ex parte.
15. In view of above, the provisions of Order 22 Rule 4 (4) of the Code were clearly applicable in the above facts and circumstances of the case, and in spite of the fact that the LRs of deceased defendants Gajadhar Prasad and Hanuman Prasad were not brought on record; the appeal could not be held to have abated.
16. It may be noted in the above context that the counsel of the appellant including the deceased defendant No. 6 Hanuman Prasad, as well as the counsel for respondent No. 1/plaintiff/Mathura Prasad did not intimate the Court regarding their death till 22-3-1995 when the case was closed for judgment on 10-3-1995. On 22-3-1995, for the first time, counsel for Res. No. 1, Shri Lokras filed an application (I.A. No. 3) under Order 22 Rules 3 & 4 C.P.C. stating that as defendant Nos. 5 & 6 Hanuman Prasad and Gajadhar Prasad have died, the appeal be held as abated and be dismissed as such. On the next date fixed for arguments on the said application, on 7-4-1995, the appellants’ counsel filed an application under Order 22 Rule 4 (4) of the ‘Code’. Thus, before the order holding that the appeal has abated was passed, an application under Order 22 Rule 4 (4) of the Code seeking exemption from the requirement of substitution of LRs of the deceased/defendants Hanuman Prasad and Gajadhar Prasad was filed on behalf of the appellants. It is, therefore, clear that the said application (I.A. No. 4) ought to have been allowed and consequently, the application (I.A. No. 3) of the respondents with the prayer that the appeal be held to have abated, should not have been dismissed.
17. It appears from the impugned-order that the learned Lower Appellate Court had placed reliance on Pradip Narain Singh and Ors. v. Brij Nandan Prasad and Ors. (AIR 1988 Patna 147) (wrongly cited in the impugned-order as AIR 1981 Patna 147) and Corporation of Calcutta v. Himansu Sekhar Basu and Ors. (AIR 1987 Cal. 58) wherein it was held that exemption under Order 22 Rule 4 (4) of the ‘Code’ cannot be claimed, in view of the fact that no application was filed for such an exemption and as there was already an order passed holding that the appeal has abated.
18. However, in the instant case, as noticed earlier, no order that the appeal was abated, was passed by the Lower Appellate Court and, therefore, the ratio of the Patna case does not apply to the facts of the appeal before the Lower Appellate Court. In the other case of Calcutta Corporation (supra), relied on by the learned Lower Appellate Court, also the facts and circumstances of the case were entirely different. It was observed in that case that though the plaintiff had moved an application for substitution of LRs of deceased respondent in another suit between the parties, but did not do so in the case before the Trial Court. Hence, it was held that the discretion under Order 22 Rule 4 (4) of the ‘Code’ in the above circumstances, could not be exercised in favour of the plaintiff Corporation of Calcutta. It has not been laid down therein that in no case, the appellant would be disentitled to get exemption under Order 22 Rule 4 (4) of the ‘Code’, even if conditions laid down therein are fulfilled.
19. Thus, it appears that the learned Lower Appellate Court misdirected itself in holding that the application, I.A. No. 3 praying that the appeal be dismissed as abated, deserves to be allowed, in the facts and circumstances of the case in hand before it.
20. It may further be noted, in the above context that the statute does not prohibit and provide that application under Order 22 Rule 4 (4) of the ‘Code’ cannot be filed after the period of 90 days, after the death of the deceased, after which the appeal abates. It may be noted in the above context that the Rajasthan High Court in Girdhari Lal and Ors. v. Laxminarain (AIR 1990 Raj. 15) has held that Sub-rule (4) of Rule 4 of Order 22 of the Code is an exception to the main Rule, and if the exemption is granted under Sub-rule (4), then the abatement does not come into operation. As such, the power of the Court to exempt the plaintiff from bringing legal representatives of the defendant, who had not filed the written statement or having filed the same had not appeared to contest the suit at the hearing, is not fettered by the limitation of 90 days after which the suit as against the defendant must be deemed to have abated and the Court can even thereafter grant such an exemption.
21. Similarly, the Allahabad High Court in Mohammad Mustageem and Ors. v. Aftab Ahmad and Ors. (AIR 1983 All. 368) has also held that the power to grant such an exemption under Order 22 Rule 4 (4) of the Code remains unibhibited by the condition that the application for the said purpose was not moved within 90 days. In fact, Order 22 Rule 4 (4) of the Code grants an exemption and relieves the plaintiff from the liability of moving an application under Order 22 Rule 4 (1) of the Code for substitution of LRs and the consequences that may follow under Order 22 Rule 4 (3) of the Code. It was further held in that case by the Allahabad High Court that, even an application for the said purpose is not required, and the Court can by itself grant the exemption as power is conferred on the Court; and invoking of the same is not a condition precedent for its exercise. It was further elaborated therein that the word “whenever” means at whatever time or so ever.
22. It is thus clear that though in the instant case, the application for exemption under Order 22 Rule 4 (4) of the Code, marked as I.A. No. 4 in the Lower Appellate Court, was not filed till a very belated stage, during the pendency of the appeal and till I.A. No. 3 under Order 22 Rule 4 of the ‘Code’ was filed by the respondent No. 1 for treating the appeal as abated, yet the same deserves to be allowed, in the foregoing circumstances of the case.
23. Therefore, the impugned-order cannot be allowed to stand. Consequently, the exemption sought by the appellants by their application (I.A. No. 4) filed before the Lower Appellate Court seeking exemption from substituting the L.R.s of deceased/defendant No. 5 Gajadhar Prasad and defendant No. 6 Hanuman Prasad, who were arrayed as Res. No. 2 and appellant No. 5 respectively before the Lower Appellate Court, deserves to be allowed. Consequently, the application marked as I.A. No. 3 filed by the plaintiff/respondent No. 1 for treating the appeal as having abated, deserves to be and is hereby dismissed. The appeal does not abate. The same shall be heard and decided on its merits by the Lower Appellate Court.
24. This appeal is, therefore, allowed. The impugned-order is set-aside. The Lower Appellate Court shall proceed to decide the appeal on its merit. In view of the old pendency of the case, the same shall be decided within six months from the receipt of the certified copy of this Order alongwith the record. The parties shall appear before the Lower Appellate Court on 16-10-2000 for partaking in further proceedings of the case, without any further notice. Parties shall, however, bear their own costs of this appeal.
