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S.A. Rahim and anr. Vs. Rajamma and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Judge
Reported inAIR1977Kant20; ILR1976KAR1135; 1976(1)KarLJ500
ActsCode of Civil Procedure (CPC), 1908 - Order 22, Rule 4(4)
AppellantS.A. Rahim and anr.
RespondentRajamma and ors.
Appellant AdvocateMurlidhar Rao, Adv.
Respondent AdvocateM.M. Jagirdar, Adv.
Excerpt:
.....- (4) the court, whenever it thinks fit, may exempt, the plaintiff from the necessity to substitute the legal representatives of any such defendant who has been declared ex parte or who has failed to file his written statement or who having filed it has failed to appear and contest at the hearing; sub-rule (4) however empowers the court to exempt the plaintiff from the necessity to substitute the legal representatives of any such defendant who has been declared ex parte or who has failed to file his written statement or who having filed the written statement has failed to appear and contest at the hearing......the court of first instance could not have exercised the power of granting exemption under sub-rule (4) of rule 4 of the order xxii of the code of civil proce dure. to appreciate the contention of sri murlidhar rao, it is necessary to extract the provisions of order xxii, rule 4, as amended by our high court, as fol lows:-'r. 4 - procedure in case of death of one of several defendants or of sole defendant - (1) where one of two or more defendants dies and the right to sue does riot 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.....
Judgment:

1. This second appeal is by original defendants 7 and 8 against the decree passed by the Civil Judge, Raichur in R. A. No. 125 of 1973, affirming the decree passed by the Munsiff, Ralchur, in O. S. No. 100 of 1967.

2. The relevant facts for the disposal of this appeal may, briefly, be stated as follows:- After the suit was instituted by the plaintiffs against the defendants, the 5th defendant, who was set ex parte, died. About two years after his death, an application was made by the plaintiffs on the 4th of September, 1973, under Order XXII, Rule 4 (4) of the Code of Civil Procedure praying that the plaintiffs be exempted from the necessity of substituting the legal representatives of the deceased 5th defendant, who has been declared ex parte. The same day, the learned Munsiff made an order allowing the said application. The suit was ultimately decreed by the Court of first instance, which decree has been affirmed on appeal by the learned Civil Judge. It is the said decree that is challenged by defendants 7 and 8 in this second appeal.

3. The only contention urged by Shri Murlidhar Rao, learned counsel appearing for the appellants, is that the

Court of first instance committed an error of law in allowing the application of the plaintiffs under Order XXII, Rule 4(4) of the Code of Civil Procedure exempting the plaintiffs from bringing the legal representatives of the deceased 5 th defendant on record. It was contended that as the application was admittedly made more than two years after death of defendant No 5 abatement had taken place, as a result of which the Court of first instance could not have exercised the power of granting exemption under sub-rule (4) of Rule 4 of the Order XXII of the Code of Civil Proce dure. To appreciate the contention of Sri Murlidhar Rao, it is necessary to extract the provisions of Order XXII, Rule 4, as amended by our High Court, as fol lows:-

'R. 4 - Procedure in case of death of one of several defendants or of sole defendant - (1) Where one of two or more defendants dies and the right to sue does riot 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 to substitute the legal representatives of any such defendant who has been declared ex parte or who has failed to file his written statement or who having filed it has failed to appear and contest at the hearing; and the 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 had been pronounced before his death took place.'

An application to bring the legal representatives of the deceased defendant has to be presented within 90 days from the date of death of the deceased defendant. If no such application is made, as provided under sub-rule (1) of Rule 4 of Order XXII, the suit abates as against the deceased defendant. Sub-rule (4) however empowers the Court to exempt the plaintiff from the necessity to substitute the legal representatives of any such defendant who has been declared ex parte or who has failed to file his written statement or who having filed the written statement has failed to appear and contest at the hearing. The Court obviously has to exercise the discretion vested in sub-rule (4) after taking into consideration all the relevant facts and circumstances. In given circumstances, it is open to the Court to decline to accord exemption sought by the plaintiff under sub-rule (4) of Rule 4 of Order XXII. If the Court , in exercise of its discretion, grants exemption to the plaintiff from the necessity to substitute the legal representatives of the concerned defendant, the Court can proceed to dispose of the suit and pronounce judgment against such defendant notwithstanding the fact that the legal representatives of such defendant have not been brought on record. When such judgment is pronounced, sub rule (4) expressly provides that it shall have the same force and effect as if it had been pronounced before the death took place. In other words, a legal fiction is introduced to the effect that though the judgment is pronounced after the death of the deceased defendant, the same shall be deemed to have been pronounced before his death. It, therefore, follows that when a judgment is pronounced in a suit against the deceased defendant after according necessary exemption under sub-rule (4) no abatement as such shall be deemed to have taken effect. As the judgment itself is deemed to have been pronounced during the lifetime of the deceased defendant, it is obvious that abatement shall not be deemed to have taken effect. As, in law, it has to be deemed that no abatement has taken effect, it is not possible to accede to the contention of Shri Murlidhar Rao that the power of exemption conferred by sub-rule (4) cannot be exercised by the Court after 90 days from the date of death of the deceased after the abatement has taken effect. Besides, it appears to me having regard to the language of sub-rule (4) which provides that the power of exemption under sub-rule (4) can be exercised by the Court whenever it thinks fit, no such limitation on the power of the Court in the matter of granting exemption can be inferred. The Court is empowered by the express language of sub-rule (4) to exercise the power of exemption whenever it thinks fit before the disposal of the suit. It is, therefore, not possible to accede to the contention of Shri Murlidhar Rao that the Court of first instance had no competence to exercise its discretion in granting exemption under sub-rule (4) after 90 days after the death of the deceased 5th defendant.

4. In support of his contention, Shri Murlidhar Rao, relied upon a decision of the Orissa High Court in Lakshmi Charan Panda v. Satyabadi Behera, : AIR1964Ori39 . The said decision undoubtedly supports the contention of Shri Murlidhar Rao. The Orissa High Court has held that the power to dispense with substitution under Order 22, Rule 4 (4) considered by the said Court, which is similar to Order 22, Rule 4 (4) of the Code of Civil Procedure as amended by our High Court, can be exercised only before abatement takes place and not afterwards. The Court has observed that the words 'whenever the Court thinks fit' in Rule 4 (4) in the context must mean when the Court thinks fit within 90 days from the date of death and before abatement takes place. The Court has observed that abatement takes place automatically and does not wait for the passing of actual order by the Court and that once abatement takes place, the discretion given to the Court to invoke the provisions of Rule 4 (4) cannot be exercised. Analysing sub-rule (4) 1 have come to the conclusion that once exemption is granted and the judgment is pronounced in the suit, the judgment shall be deemed to have been pronounced against the deceased defendant before his death. The effect of sub-rule (4), as already held by me, is to prevent abatement taking place in cases where exemption is accorded under sub-rule (4), The legal fiction introduced by sub-rule (4) in regard to the deemed date of pronouncement of the judgment in such cases has not been taken into account by the Orissa High Court. As the decision has been rendered without taking into account the legal fiction introduced by sub-rule (4), with great respect I do not find it possible to agree with the view taken by the Orissa High Court.

5. Though the decision of the Madras High Court in Velappan Pillai v. Parappan Panickar, : AIR1969Mad309 is in consonance with the view which I have expressed, the effect of the legal fiction introduced in regard to the deemed date of pronouncement of the judgment under Order 22, Rule 4 (4) of the Code of Civil Procedure has not been taken into consideration. The judgment of the Madras High Court also proceeds on the language of sub-rule (3) of Rule 4 of Order 22 which is slightly different from the language employed in Order 22, Rule 4 (3) which is in force in our State. Hence, it is not necessary to deal further with the said decision.

6. For the reasons stated above, this appeal fails and is dismissed. No costs.

7. Appeal dismissed.


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