Patna High Court
Md. S. Imam vs Rai Bharat Kumar And Ors. on 26 June, 2000
Equivalent citations: AIR2000PAT321, 2000(48)BLJR1823, AIR 2000 PATNA 321, (2001) 3 CIVLJ 219, (2001) 1 BLJ 670, (2000) 3 PAT LJR 675, 2000 BLJR 3 1823
Author: D.P.S. Choudhary
Bench: D.P.S. Choudhary
JUDGMENT Nagendra Rai, J.
1. This revision application is directed against the order dated 18-12-1985, passed by the Subordinate Judge, Ist, Patna, in Title Suit No. 26 of 1982, by which he has rejected the application filed by the plaintiff-petitioner under Order XXII, Rule 4(4) of the Code of Civil Procedure (hereinafter referred to as 'the Code), claiming exemption from the necessity of substituting the legal representatives of deceased defendant No. 3, who even though appeared in the suit but neither filed any written statement nor did she participate in the proceeding of the suit.
2. The facts necessary for disposal of the present application are that the plaintiff filed the aforesaid suit for declaration of title as well as for a declaration that the sale deed executed by defendants No. 3 and 4 in favour of defendants No. 1 and 2 was illegal and inoperative as well as for recovery of possession.
3. The plaintiff's case is that the premises in question, situated in S.P. Verma Road in the town of Patna, was the self-acquired property of her husband, namely, late Akbar Imam. He gifted the same to her on 20-11-1966 and on the basis of the said gift, the name of the petitioner was mutated in the records of the Patna Municipal Corporation and other records. Her husband had given in writing in the Corporation accepting the gift in favour of the petitioner. Thereafter, she became an absolute owner and came in possession of the suit premises. Her husband fell seriously ill and ultimately he died in England in the year 1967, leaving behind the petitioner as his widow, mother Ashma Zafar Imam (defendant No. 3) and a daughter from his divorced wife Smt. Tahmina Parwani. After the death of her husband, the petitioner for some time remained in London and the property was being looked after by the persons authorised by her. During her absence, the mother (defendant No. 3) got her name mutated in the Corporation and she along with defendant No. 4 sold the suit property on 28-4-1970 to Shri Rai Bharat Kudmar and his wife Smt. Omi Devi (defendants No. 1 and 2).
4. After filing of the suit, summonses were sent to defendants No. 1 to 4. Defendant No. 3 appeared in the suit but, theretaf-ter, she did not take any step, including the filing of the written statement and on 19-9-1984 she died. The other defendants, including daughter of late Akbar Imam, filed written statements and contested the Suit. As defendant No. 3 did not file any written statement after appearance in the Court, the plaintiff-petitioner filed a petition on 28-1- 1985 under Order XXII, Rule 4(4) of the CPC before the Court below for exempting her from the necessity of filing a substitution petition for substituting legal representatives of defendant No. 3. The said petition has been rejected by the learned Subordinate Judge by the impugned order on the ground that there is no material on the record to show as to in what circumstance defendant No. 3 could not file any written statement or contest the suit and the said fact would be brought on the record only by the legal heirs of defendant No. 3 and as such the substitution of the heirs of deceased defendant No. 3 was necessary for the decision of the case.
6. The matter was placed before the learned single Judge for hearing and he, by order dated 19-11-1986, referred the following question to be decided by a Division Bench :
"Whether a Court can proceed with a suit without substitution as provided under Order XXII, Rule 4(4) of the Code of Civil Procedure in a case where the defendant dies before the filing of the written statement."
6. Learned counsel for the petitioner raised two contentions, firstly that as defendant No. 3, after her appearance, neither filed a written statement nor did she contest the suit, the provision of Order XXII, Rule 4(4) of the CPC is attracted in the facts of this case and the Court below has wrongly rejected the prayer for exemption on the ground mentioned in the impugned order and the Court below should have allowed the prayer for exemption and secondly that defendant No. 3 has sold her entire interest along with defendant No. 4 in the disputed land in favour of defendants No, 1 and 2 and as such she was a pro forma defendant and not a necessary party and, accordingly, the suit will not abate on her death.
7. Learned counsel appearing for the opposite parties, on the other, submitted that the stage to file an application for exemption under Order XXII, Rule 4(1) of the Code is prior to the abatement of the suit against the deceased defendant. Once the defendant has died and abatement has taken effect due to non-filing of the substitution petition within time, the prayer for exemption cannot be allowed. Secondly, he submitted that stage of application under Order XXII, Rule 4(4) of the Code has not arisen in this case as there is nothing on the record to show that a date was fixed for filing the written statement. He further submitted that defendant No. 3 was a necessary party to the suit and not a pro forma party and as such the suit will abate on her death.
8. Both the parties have relied upon certain case-laws, which will be referred to at the appropriate places.
9. The moot question, which has to be decided in this case, is as to the meaning and scope of the provision contained under Order XXII, Rule 4(4) of the Code and as such it is necessary to State briefly the statutory provisions having a bearing on the point in issue.
10. Order XXII of the Code contains provisions with regard to the death, marriages and insolvency of parties. It also contains a provision with regard to the substitution in case of death of the parties. Rule 4 contains a procedure in case of death of one of several defendants or of sole defendant. Sub-rule (1) provides that if one of two or more defendants dies and the right to issue 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 bring the legal representative of the deceased defendant on the record and proceed with the suit. In other words, in a case where a party dies and if the eventuality as mentioned in Rule 4(1) of Order XXII of the Code happens, then his heir is to be brought on the record and, thereafter, the suit will proceed. Sub-rule (3) provides that if no application is made under Sub-rule (1), within the time prescribed by law, the suit will abate against the deceased defendant. Prior to the amendment by the Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976) (hereinafter 'referred to as 'the Amending Act'), there was no provision in the Code vesting discretion in the Court to exempt the plaintiff from substituting the legal representatives of the defendant, who is non-contesting defendant. The High Courts of Assam, Delhi, Calcutta, Madras, Karnataka and Orissa, by amendments incorporated a provision in Order XXII, Rule 4(4) of the Code vesting discretion in the Court to exempt the plaintiff from the necessity of substituting the legal representatives of the deceased defendant in case after appearance, he has not filed written statement or after filing the written statement has failed to contest the suit.
11. The Law Commission having noticed that the delay in substitution has resulted in delay in disposal of the suit, recommended for incorporation of a provision in the Code vesting discretion in the Court to exempt the plaintiff from the necessity of filing substitution petition in case of death of non-contest-ing defendant. The Parliament enacted the Amending Act and by Section 73 thereof, Sub-rule (4) was inserted in Order XXII, Rule 4 of the Code, Sub-rule (4) runs as follows :-
"(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 plac e."
12. Section 97 of the Amending Act contains a provision with regard to repeal and savings and Section 97(2)(r) provided that the amending provisions as contained in Rule 4 of Order XXII shall not apply to any order of abatement made before the commencement of the said Section 73. Section 73 came into force on 1-2-1977.
13. A statute is an edict of legislature and when the words of a statute arc clear, plain and unambiguous and leading to only one meaning, then the effect is to be given to the same without taking into consideration the consequences. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the legislature. (See Sussex Peerage Case, (1844) 11 CI & F85, p. 143). Only when the words of statutes are not plain, clear and susceptible of having more than one meaning and the intention of the legislature is not decipherable, the other rule of interpretation comes into play.
14. According to Order XXII, Rule 4(3) of the Code, if the defendant dies and no application is filed for substitution of his heirs within the statutory period, the suit abates automatically and no specific order is required. (See Union of India v. Ram Charan, reported in AIR 1964 SC 215 and the case of Madan Naik v. Hansubala Devi, reported in AIR 1983 SC 676). Sub-rule (4) thereof, as stated above, vests a discretion in the Court to exempt the plaintiff from the necessity of filing an application for substituting the legal representatives of the deceased 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 of the suit and the discretion is, to be exercised by the Court "whenever it thinks fit" prior to the delivery of the judgment. After grant of exemption, the Court may pronounce a judgment against the deceased defendant and such judgment will have the same effect and force as if it has been rendered and pronounced before the death took place, meaning thereby the judgment will be deemed to have been rendered while the defendant was alive.
15. 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 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 fulfilment 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 lifetime. 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 thai situation, the suit will not be treated to have abated against the deceased defendant.
16. The said interpretation gets further strength from the repeal and saving clause as contained in Section 97(2)(r) of the Amending Act, which provides that the provisions of Sub-rule (4) of Order XXII shall not apply to any order of abatement made before the commencement of Section 73 of the Amending Act, meaning thereby if an order of abatement has been made on or before 1-2-1977 when the Amending Act came into force, the provision of Sub-rule (4) will not apply. It will apply after 1-2-1977 and exemption may be granted even if the abatement has taken place. The interpretation of Sub-rule (4) to the effect that it is controlled by Sub-rule (3) will amount to ignoring the clear intention of the legislature incorporated in clear and plain words in Order XXII, Rule 4(4) of the Code.
17. This rule has been the subject matter of consideration and discussion in catena of cases. Two clear contradictory views have been taken by the High Courts. One view is that the power of exemption can be exer-cised by the Court at any stage of the suit prior to delivery of the judgment and the other view is that this power can be exercised before abatement has taken place and not thereafter. A Division Bench of this Court had considered the matter in the ease of Rajnath v. Shiva Prasad, reported in AIR 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. I agree with the view taken by the said Division Bench. The same view has been reiterated by the Madras High Court in the case of (i) Velappan Pillai v. Parappan Panickar, reported in AIR 1969 Madras 309, (ii) Janabi Ammal alias Gunabooshani v. T.A.S. Palani Mudaliar, reported in AIR 1981 Madras 62 and (iii) Krishnaveni v. Ramchandra Naidu, reported in AIR 1998 Madras 379, by Karnataka High Court in the case of Rahim v. Rajarnma, reported in AIR 1977 Kant 20 and Gurubasappa Siddappa Kampli v. N. V. Angadi, reported in AIR 1984 Kant 1, by Gauhati High Court in the case of Nepal Chandra Saha v. Rebati Mohan Saha, reported in AIR 1979 Gauhati 1, by the Delhi High Court in the case of Yog Raj Puri v. Yogeshwar Raj, reported in AIR 1982 Delhi 62 as well as by the Allahabad High Court in the case of Moharnmad Mustaqeem v. Aftab Ahmad, reported in AIR 1983 All 368.
18. As stated above, prior to the insertion of Sub-rule (4) in Rule 4 of Order XXII of the Code, a similar provision was incorporated by the Calcuita High Court and interpreting the said provision, the Calcutta High Court in Sankari Prasad v. Kanai Lal, reported in (1948) 52 Cal WN 599, Nani Gopal v. Panchanan, reported in (1945) 49 Cal WN 305 and Annapurna v. Harsundari, reported in AIR 1975 Cal 12, took the view that the power to exempt vested in the Court under the provisions contained in the said amendment can be exercised only before abatement has taken place and not thereafter. However, a Division Bench of the same High Court in re : Nishit Mohan Chatterjee, reported in (1993) 97 Cal WN 636 held that after incorporation of Sub-rule (4) by the Amending Act in Order XXII, Rule 4 of the Code, the earlier judgments of the said Court were no longer a good law and the power of exemption under Sub-rule (4) of Order XXII, Rule 4 of the Code can be exercised even after the abatement had taken place.
19. The Orissa High Court in the case of Lakshmi Charan v. Satyabadi, reported in AIR 1964 Orissa 39, relying upon the earlier judgments of the Calcutta High Court in Sankari Prasad's case (1948 (52) Cal WN 599) (supra) and Nani Copal's case (1945 (49) Cal WN 305) (supra), held that once the abatement has taken place, the power of exemption cannot be exercised.
20. Thus, apart from the Division Bench judgment of this Court, which is binding on us unless we decide to refer the matter to the larger Bench, as mentioned above, majority of the High Courts have held that the power of exemption, as provided under Order XXII, Rule 4(4) of the Code can be exercised by the Court at any stage before the pronouncement of the judgment. In other words, if the abatement has taken place, that will not fetter the power of the Court to grant exemption as provided under Order XXII, Rule 4(4) of the Code. Thus, after having considered the matter from different angles, I hold 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. At this stage, it is to be clarified that the abatement takes place automatically and no order is required to be recorded for the same. In that view of the matter, even after an order of abatement is recorded, that will not stand in the way of the Court to exercise the power under Order XII, Rule 4(4) of the Code. The view taken by the learned single Judge of this Court in the case of Pradip Narain Singh v. Brij Nandan Prasad, reported in AIR 1988 Patna 147 that the exemption can be claimed only when no order of abatement has been passed, is not correct. It appears that the learned single Judge has relied upon the Division Bench judgment of this Court in the case of Rajnath (AIR 1979 Patna 239) (supra), in which that point had not directly arisen for consideration. As stated above, Section 97(2)(r) of the Amending Act only provided that the provisions of Sub-rule (4) shall not apply to any suit where the order of abatement has already been made prior to the commencement of its operation. It never said in general terms that after an order of abatement has been passed, the provision of Sub-rule (4) of Rule (4) of Order XXII of the Code will not apply. Neither there is any logic nor is there any rationality in taking the aforesaid view for the simple reason that recording of an order of abatement is not a condition precedent for the abatement to take effect.
21. Regarding the submission raised on behalf of the opposite parties that the stage of an application under Order XXII, Rule 4(4) of the Code has not arisen in this case as there is nothing on the record to show that any date for filing written statement was fixed and defendant No. 3 failed to file written statement, I find that the same is devoid of any substance. Under Order V, Rule 1, read with rule 5 of the CPC, summons can be issued either to settle issues or for final disposal. The date fixed to settle the issues is the first hearing of the suit and according to Order VIII, Rule 1 of the Code, the defendant has to file written statement on or before the first hearing or within such time as the Court may permit. Defendant No. 3 was served with a notice, which even if treated as summons for settlement of issues then written statement should have been filed on the date fixed in the case or time would have been prayed for filing the written statement. The material on the record shows that defendant No. 3 after appearance neither filed any written statement nor did he pray for extending the period for filing the written statement and as such defendant No. 3 failed to file written statement.
22. The trial Court has taken a peculiar view in rejecting the prayer of the plaintiffs-petitioners for exemption and has observed that the Court is not aware of the circumstances under which defendant No. 3 could not file written statement and the said fact would be brought on record only by legal heirs of defendant No. 3 and as such substitution of the heirs of deceased defendant No. 3 was necessary for the decision of the case. Sub-rule (4) by Section 73 of the Amending Act was incorporated in Order XXII, Rule 4 of the CPC to allow exemption in a suit where the defendant is not contesting and it is for the Court to consider whether exemption should be allowed or not. The said prayer cannot be disallowed on the ground that the legal representatives of the deceased are necessary parties and in absence of them no decision can be taken. The legislature has itself provided that in case of non-contesting defendant even without substitution of his heirs, the judgment can be pronounced, which has the same effect as if the same was delivered during the lifetime of the deceased defendant.
23. Taking into consideration the aforesaid facts and circumstances, I am of the view that the trial Court has acted illegally and with material irregularity in exercise of its jurisdiction. Accordingly, this civil revision application is allowed, the impugned order passed by the trial Court is set aside and the matter is remitted to the Court below to consider the matter afresh in the light of the observations made above.
D.P.S. Choudhary, J.
24. I agree.