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Wednesday, March 20, 2013

Order XXII Rule 4 is accordingly reproduced hereunder:- “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 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- 20Page 21 (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 (b) 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 that 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.” This could only have been done, on the satisfaction that the parameters postulated under Order XXII Rule 4(4) of the Code of Civil Procedure, stood complied. The fact that the aforesaid satisfaction was justified, has already been affirmatively concluded by us, hereinabove. We are therefore of the considered view, that the learned Single Judge committed no error whatsoever in proceeding with the matter in CS (OS) no.2501 of 1997 ex-parte, as against the sole defendant Sushil K.C., without impleading his legal representatives in his place. We therefore, hereby, uphold the determination of the learned Single Judge, with reference to Order XXII Rule 4(4) of the Code of Civil Procedure. 27. For the reasons recorded hereinabove, we find no merit in the instant appeals and the same are accordingly dismissed.


Page 1
“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.2600-2601 OF 2013
(Arising out of SLP (C) Nos. 3307-3308 of 2012)
Sushil K. Chakravarty (D) Thr. LRs. …. Appellant
Versus
M/s. Tej Properties Pvt. Ltd. …. Respondent
J U D G M E N T
Jagdish Singh Khehar, J.
1. Leave granted.
2. The impugned order herein dated 17.10.2011 was passed by a
Division Bench of the Delhi High Court (hereinafter referred to as, the
High Court), whereby, it dismissed, by a common order, FAO (OS) no.
516 of 2009 and FAO (OS) no. 517 of 2009. Both the aforesaid intracourt appeals had been filed by Sushil K. Chakravarty (hereinafter
referred to as, Sushil K.C.) through his legal heirs Arun K. Chakravarty
(hereinafter referred to as, Arun K.C.) and Sunil K. Chakravarty
(hereinafter referred to as, Sunil K.C.) in respect of agricultural land
measuring 8 bighas and 5 biswas with a farm house built thereon
alongwith tubewell, electrcitiy connection etc. falling within the revenue
estate of village Chhatarpur, Tehsil Mehrauli, New Delhi. This property
has also been described as Maharani Rosary. It would be relevant to
1Page 2
mention, that the instant impugned order arises out of two suits, one
filed by M/s. Tej Properties Pvt. Ltd. (hereinafter referred to as, Tej
Properties), bearing CS (OS) no. 2501 of 1997, against Sushil K.C. and
the other filed by Sushil K.C., bearing CS (OS) no. 1348 of 1996,
against Tej Properties. In order to effectively understand the
controversy in hand, it will be necessary to briefly record the details of
the litigation between the rival parties, arising out of the two suits
referred to above, which eventually led to the passing of the common
impugned order dated 17.10.2011.
CS (OS) no. 2501 of 1997
3. Tej Properties filed CS (OS) no. 2501 of 1997 on 13.11.1997 in
the High Court, praying for specific performance of an agreement to sell,
executed by the plaintiff Tej Properties with the defendant Sushil K.C.
on 17.3.1992. The aforesaid agreement was in respect of agricultural
land owned by the defendant Sushil K.C., measuring 8 bighas and 5
biswas, with a farm house built thereon along with tubewell, electrcitiy
connection etc., falling within the revenue estate of village Chhatarpur,
Tehsil Mehrauli, New Delhi. The agreement to sell, is in respect of the
same property, which bears the description – Maharani Rosary. The
agreement dated 17.3.1992 contemplated a total consideration of
Rs.60,00,000/-, out of which a sum of Rs.22,00,000/- was passed on to
the defendant as earnest money. Of the said payment, Rs.20,00,000/-
was passed on by cheque (comprising of two cheques of Rs.7,00,000/-
2Page 3
each, and one cheque of Rs.6,00,000/-). The balance Rs.2,00,000/-
was paid in cash. The grievance projected by the plaintiff Tej Properties
in the instant suit was, that even though it had approached Sushil K.C.
on a number of occasions, requiring him to complete the sale
transaction, Sushil K.C. had failed to give effect to the agreement to sell
dated 17.3.1992. The plaintiff Tej Properties asserted, that it was willing
to perform its part of the contract, but the defendant Sushil K.C. failed to
take any steps in complaince with the obligations vested in him, under
the agreement to sell dated 17.3.1992.
4. According to the pleadings in CS (OS) no. 2501 of 1997, the
necessity of filing the instant suit for specific performance arose after
the plaintiff Tej Properties received a notice from the counsel
representing the defendant Sushil K.C. informing him, that the
defendant Sushil K.C. had filed a suit for declaration and recovery of
immovable property, which was subject matter of consideration under
the agreement to sell dated 17.3.1992.
5. The defendant Sushil K.C. entered appearance in CS (OS) no.
2501 of 1997 and filed a written statement on 6.3.1998. Thereafter,
Sushil K.C. stopped appearing in the said civil suit. He was also not
represented through counsel thereafter. Sushil K.C. was accordingly
proceeded against ex-parte in CS (OS) no. 2501 of 1997 on 1.8.2000.
The plaintiff Tej Properties filed its affidavit of evidence on 9.12.2002.
Sushil K.C. died on 3.6.2003, i.e., during the pendency of CS (OS) no.
3Page 4
2501 of 1997. It would be relevant to mention, that the defendant Sushil
K.C. was not survived by any Class-I heir.
He however, left behind two
brothers (who are Class-II heirs), namely, Arun K.C. and Sunil K.C.
 On
29.8.2003, the plaintiff Tej Properties filed an interlocutory application
being I.A. no. 9676 of 2003 under Order XXII Rule 4(4) of the Code of
Civil Procedure for proceeding with CS (OS) no. 2501 of 1997 ex-parte.
Thereafter, the said suit factually progressed ex-parte.
Evidence was
recorded on behalf of the plaintiff Tej Properties on 28.1.2005.
On
9.8.2005, the High Court directed the plaintiff Tej Properties to place on
the record of the civil suit, the original agreement to sell dated
17.3.1992.
The High Court further directed the Punjab National Bank to
produce its record pertaining to the property in respect whereof the
plaintiff Tej Properties was seeking specific performance (based on the
agreement to sell dated 17.3.1992).
On 4.5.2006, the Punjab National
Bank was represented before the High Court. Consequent upon a
compromise between the plaintiff Tej Properties and the Punjab
National bank, a sum of Rs.10,47,00,000/- came to be paid to the
Punjab National Bank, leading to the redemption of the property (which
was the subject matter of the agreement to sell dated 17.3.1992) which
had been mortgaged with the said bank by Sushil K.C..
Thereupon, in
compliance with an order passed by the High Court, the Punjab
National Bank released the title papers of the property (which was
subject matter of the agreement to sell dated 17.3.1992). On
25.7.2007, a learned Single Judge of the High Court decreed CS (OS)
4Page 5
no. 2501 of 1997 by granting specific performance of the agreement to
sell dated 17.3.1992 to the plaintiff Tej Properties. It would be relevant
to mention, that while decreeing CS (OS) no. 2501 of 1997, the learned
Single Judge of the High Court held, that no balance amount was
payable by the plaintiff Tej Properties to the defendant Sushil K.C. in
lieu of the balance sale consideration, as the amount paid by the
plaintiff Tej Properties to the Punjab National Bank was in excess of the
balance sale consideration.
6. It is apparent, that the learned Single Judge of the High Court
decided CS (OS) no. 2501 of 1997 without impleading the legal
heirs/representatives of Sushil K.C. (Arun K.C. and Sunil K.C.) who had died on 3.6.2003.
It seems, that the High Court had proceeded with the
matter under Order XXII Rule 4(4) of the Code of Civil Procedure,
whereunder, it is open to a court to exempt the plaintiff from the
necessity of substituting the legal representatives of a deceased
defendant, who having filed the written statement, has failed to appear
and contest the suit. 
In such a case, a court may pronounce its
judgment, notwithstanding the death of such defendant. Such
judgment, would have the same force as it would have, if the same had
been pronounced before the death of the defendant.
7. On 11.3.2008, Arun K.C. and Sunil K.C. filed an interlocutory
application being I.A. no. 3391 of 2008 under Order IX Rule 13 of the
Code of Civil Procedure, in their capacity as legal representatives of
5Page 6
their deceased brother Sushil K.C., for recalling the ex-parte judgment
and decree dated 25.7.2007 (vide which CS (OS) no. 2501 of 1997 had
been decreed).
 For explaining the delay in moving the aforesaid
interlocutory application, the explanation tendered by the applicants,
who were brothers of Sushil K.C. was, that they had become aware of
the suit property, as also, the suit filed by the plaintiff Tej Properties, and
the judgment/decree rendered thereon on 25.7.2007, only in the third
week of February, 2008. 
It was submitted by the applicants, that on
acquiring such knowledge, they had immediately thereafter moved the
High Court for obtaining certified copies. Having obtained certified
copies on 26.2.2008, they had immediately filed I.A. no. 3391 of 2008
on 11.3.2008.
8. The non-applicant/plaintiff Tej Properties filed its reply to I.A. no.
3391 of 2008 on 14.11.2008. Thereupon, the learned Single Judge of
the High Court having considered the submissions advanced by the
rival parties, dismissed I.A. no. 3391 of 2008 on 24.8.2009.
 Dissatisfied
with the aforesaid order dated 24.8.2009, the applicants Arun K.C. and
Sunil K.C. filed an intra-court appeal, i.e., FAO (OS) no. 516 of 2009.

On 17.10.2011, a Division Bench of the High Court dismissed the
aforesaid intra-court appeal. The order dated 17.10.2011 passed in
FAO (OS) no. 516 of 2009 has been assailed through the instant
appeals.
6Page 7
9. The plaintiff Tej Properties in CS (OS) no. 2501 of 1997 is the
respondent in the instant appeals. The defendant Sushil K.C. in CS
(OS) no. 2501 of 1997 through his legal representatives Arun K.C. and
Sunil K.C., is the appellant in the instant appeals.
CS (OS) no. 1348 of 1996
10. On 23.5.1996, Sushil K.C. filed CS (OS) no. 1348 of 1996 before
the High Court, praying for a declaration, that the agreement to sell
dated 17.3.1992 (already referred to above) stood terminated. In this
behalf, it would be pertinent to mention, that Sushil K.C. had issued a
notice dated 5.8.1992, whereby he had informed the defendant Tej
Properties of the termination of the agreement to sell dated 17.3.1992.
He accordingly also sought possession of the property, which was
subject matter of the agreement to sell dated 17.3.1992. Additionally,
the plaintiff Sushil K.C. sought damages of Rs.40,00,000/-.
11. On 24.5.1996, a learned Single Judge of the High Court passed
an interim order, restraining the defendant Tej Properties from
alienating or parting with possession of the property, which was subject
matter of the agreement to sell dated 17.3.1992. As already noticed
above, the plaintiff Sushil K.C. died on 3.6.2003, i.e., during the
pendency of CS (OS) no. 1348 of 1996.
Since the plaintiff Sushil K.C.
was not represented in CS (OS) no. 1348 of 1996 after 3.6.2003, the
said suit came to be dismissed in default for non-prosecution, on
14.10.2004.
7Page 8
12. As already noticed above, Sushil K.C. was not survived by any
Class-I heir. He left behind two brothers, namely, Arun K.C. and Sunil
K.C. (who are Class-II heirs). On 28.3.2008, Arun K.C. and Sunil K.C.,
in their capacity as legal representatives of their deceased brother
Sushil K.C., filed an interlocutory application being I.A. no. 4531 of 2008
under Order IX Rule 9 of the Code of Civil Procedure, praying for the
restoration of CS (OS) no. 1348 of 1996, which was dismissed in default
for non-prosecution, on 14.10.2004. For explaining the delay in moving
the aforesaid interlocutory application, the explanation tendered by Arun
K.C. and Sunil K.C. was, that they became aware of the suit filed by
their brother Sushil K.C., and the dismissal in default of the same (on
14.10.2004), only in the third week of February, 2008. The applicants
allege, that they had immediately thereafter moved the High Court for
obtaining the certified copies. It is their case, that having obtained
certified copies, they immediately filed I.A. no. 4531 of 2008 on
28.3.2008.
13. The learned Single Judge of the High Court dismissed I.A. no.
4531 of 2008 on 24.8.2009. In fact, I.A. no. 3391 of 2008 (arising out of
CS (OS) no. 2501 of 1997) and I.A. no. 4531 of 2008 (arising out of CS
(OS) no. 1348 of 1996) were disposed of by the learned Single Judge of
the High Court, by a common order dated 24.8.2009.
14. Dissatisfied with the order dated 24.8.2009, by which I.A. no.
4531 of 2009 was dismissed, the applicants (Arun K.C. and Sunil K.C.)
8Page 9
filed an intra-court appeal, i.e. FAO (OS) no. 517 of 2009. By an order
dated 17.10.2011, a Division Bench of the High Court dismissed the
aforesaid intra-court appeal. In fact, FAO (OS) no. 516 of 2009 (arising
out of I.A. no. 3391 of 2008 in CS (OS) no. 2501 of 1997), and FAO
(OS) no. 517 of 2009 (arising out of I.A. no. 4531 of 2008 in CS (OS)
no. 1348 of 1996), were disposed of by the Division Bench of the High
Court, by a common order dated 17.10.2011.
15. The plaintiff Sushil K.C. in CS (OS) no. 1348 of 1996, through his
legal representatives Arun K.C. and Sunil K.C., is the appellant in the
instant appeals. The defendant Tej Properties in CS (OS) no. 1348 of
1996 is the respondent in the instant appeals.
First Common Order dated 24.8.2009 passed by the learned Single
judge of the High Court
16. The first common order in the controversy in hand was passed by
the learned Single Judge of the High Court on 24.8.2009, whereby two
interlocutory applications filed by the legal representatives of the
appellant Sushil K.C. came to be disposed of. By the aforesaid
common order dated 24.8.2009, the High Court dismissed I.A. no. 3391
of 2008 (arising out of CS (OS) no. 2501 of 1997) filed under Order IX
Rule 13 of the Code of Civil Procedure, for recalling the ex-parte
judgment/decree dated 25.7.2007, whereby, CS (OS) no. 2501 of 1997
was decreed by the High Court. By the same order dated 24.8.2009,
the High Court also dismissed I.A. no. 4531 of 2008 (arising out of CS
(OS) no. 1348 of 1996) filed under Order IX Rule 9 of the Code of Civil
9Page 10
Procedure, for restoration of CS (OS) no. 1348 of 1996 which had been
dismissed in default for non-prosecution, on 14.10.2004.
17. It is apparent from the factual position noticed hereinabove, that
even though CS (OS) no. 2501 of 1997 was decreed on 25.7.2007, I.A.
no. 3391 of 2008 (for recalling the judgment/decree dated 25.7.2007)
was filed on 11.3.2008. Likewise, even though CS (OS) no. 1348 of
1996 had been dismissed in default for non-prosecution on 14.10.2004,
I.A. no. 4531 of 2008 (for the restoration of CS (OS) no. 1348 of 1996)
was filed on 28.3.2008.
The delay in filing the aforementioned
interlocutory applications was sought to be explained by asserting, that
Arun K.C. and Sunil K.C. (the legal heirs/representatives of Sushil K.C.,
who had filed the aforesaid applications) had no knowledge of the
property under reference, nor had they any knowledge of the pending
litigation in connection therewith. Tej Properties seriously contested the
applications by denying the aforesaid factual assertions, namely, that
the aforesaid legal heirs were not aware of the property in question, as
also, the pending litigation.
The learned Single Judge of the High Court
did not accept the factual assertions made by the applicants for
explaining the delay in filing the interlocutory applications, by recording
the following observations:-
“25. This Court is not at all satisfied with the reasons given by
the applicants for the delay in filing these applications. The
ground that they were not aware of the pendency of these suits
and they became aware only sometime in February, 2008, does
not inspire confidence. 
The facts brought on record by the
plaintiff (TPPL) show that the applicants were aware of these
proceedings even during the earlier rounds of litigation involving
10Page 11
late Sushil K. Chakravarty to which they were also parties.
Therefore, reasons given for the delay in approaching the Court
are not satisfactory.”
18. On the issue whether CS (OS) no. 2501 of 1997 could be
decreed without impleading the legal representatives of the defendant
Sushil K.C. (namely, Arun K.C. and Sunil K.C.), who had admittedly
died on 3.6.2003, the learned Single Judge of the High Court returned a
finding in the affirmative, by observing as under:-
“22. The only question remains to be considered is
  whether the
Court erred in not first disposing of the said application IA
No. 9676 of 2003 before decreeing the suit.
In the
considered view of this Court in para 11 of the judgment
and decree dated 25th July, 2007, not only did the Court
notice Order XXII Rule 4 CPC but formed a definite opinion
that the said provision had to be invoked and the suit
proceeded with notwithstanding the fact that the defendant
(Sushil K. Chakravarty) had died. What appears to have
weighed with this Court was that the provisions of Order
XXII Rule 4(4) CPC suggests that the Court 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 and the judgment in such a
case may be pronounced, notwithstanding the death of the
such defendant, and that such judgment shall have the
same force as it would have, had it been pronounced
before the death took place.
23. The judgment in Ellsa vs. A. Dass, AIR 1992 Mad. 159,
reiterated that the order granting exemption in terms of
Order XXII Rule 4(4) CPC has to precede the judgment. It
was held that it was not necessary for the plaintiff to file a
written application asking for such exemption. 
Given the
sequence evident from the judgment and decree dated 24th
July, 2007, there can be no manner of doubt that the Court
first formed an opinion that the plaintiff should be exempted
from substituting the deceased defendant in terms of Order
XXII Rule 4(4) CPC and thereafter proceeded to decree the
suit. 
The judgments in Zahirul Islam vs. Mohd. Usman,
(2003) 1 SCC 476, and T. Gnanvel vs. T.S. Kanagaraj, JT
2009 (3) SC 196, do not hold anything to the contrary.
They only reiterate the necessity for compliance with Order
11Page 12
XXII Rule 4(4) CPC before the judgment is pronounced. In
the considered view of this Court, the judgment and decree
dated 24th July, 2007 passed by this Court is fully compliant
with the requirement of Order XXII Rule 4(4) CPC. There is
accordingly no merit in this ground.”
Second Common Order dated 17.10.2011 passed by the Division
Bench of the High Court
19. Dissatisfied with the common order dated 24.8.2009 passed by
the learned Single Judge of the High Court, Arun K.C. and Sunil K.C.,
the legal representatives of Sushil K.C. filed two intra-court appeals,
being FAO (OS) no. 516 of 2009 and FAO (OS) no. 517 of 2009. From
the narration recorded above, pertaining to the first common order
dated 24.8.2009, it is apparent, that two specific issues had been
determined, namely, whether the delay in filing the interlocutory
applications under Order IX Rules 9 and 13 of the Code of Civil
Procedure should be condoned. And secondly, whether the learned
Single Judge was justified in proceeding with CS (OS) no. 2501 of 1997
after the death of the sole defendant Sushil K.C. (on 3.6.2003), without
impleading his legal heirs (Arun K.C. and Sunil K.C.) as his legal
representatives.
20. The second common order dated 17.10.2011 disposed of FAO
(OS) no. 516 of 2009 and FAO (OS) no. 517 of 2009. A perusal thereof
reveals, that the Division Bench of the High Court, while passing the
common order dated 17.10.2011, dealt with only one issue, namely,
whether the delay in filing the interlocutory applications under Order IX
Rules 9 and 13 of the Code of Civil Procedure should be condoned. It
12Page 13
needs to be expressly noticed, that the Division Bench of the High Court
did not record any submission at the behest of the appellant Sushil K.C.
(through his legal representatives Arun K.C. and Sunil K.C.) on the
propriety of continuing with the proceedings in CS (OS) no. 2501 of
1997 without impleading the legal representatives of Sushil K.C. (who
had admittedly died on 3.6.2003). We would therefore assume, that no
submission was advanced at the hands of the appellant before the
Division Bench of the High Court on the said issue.
21. We may now advert to the determination of the Division Bench of
the High Court in the second common order dated 17.10.2011, whereby
the prayer for condonation of delay (in I.A. nos. 3391 and 4531 of 2008)
was declined. On the issue of delay, the Division Bench of the High
Court observed as under:-
“12. As noted herein above, when applicant no. 2 Sh. Arun K.
Chakravarty and his wife as also his brother-in-law learnt of
the agreement to sell dated 17.3.1992, CCP no. 450/1993
and thereafter IA no. 10161/1997 in CS (OS) no.
1479A/1989 were filed by the wife and the brother-in-law of
Sh. Arun K. Chakravarty, in which, as noted herein above,
when reply was filed to IA no. 10161/1997 on 25.8.1998 by
late Sh. Sushil K. Chakravarty, he disclosed about
pendency of CS (OS) no. 1348/1996 and CS (OS) no.
2501/1997 between him and M/s. Tej Properties Pvt. Ltd.
as also the fact that the subject matter of the two cross
suits was the agreement to sell dated 17.3.1992 pertaining
to the land comprising Maharani Rosary.
13. Now, the appellants i.e. the applicants before the learned
Single Judge urge before us that from the fact that the wife
and the brother-in-law of appellant no. 2/applicant no. 2 had
knowledge of CS (OS) no. 1348/1996 and CS (OS) no.
2501/1997, it cannot be inferred that the applicants also
had knowledge of the 2 suits.
13Page 14
14. It is not disputed that the wife of applicant no. 2 has cordial
relations with him and resides with him. Thus, her
knowledge being passed on to her husband on an issue of
vital interest concerning her husband is a matter of fact
which we do not believe that she did not pass on to her
husband. But, we need not rest our decision on our belief
which requires an inference to be drawn based on normal
human conduct i.e. of a matter of vital interest concerning a
husband and a wife being within the knowledge of either
spouse and passed on to the other, for the reason there
exists a fact of vital importance which unequivocally shows
the knowledge of applicant no. 2 qua the pendency of the
two cross suits between late Sh. Sushil K. Chakravarty and
M/s. Tej Properties Pvt. Ltd.
15. As noted by us herein above, applicant no. 2 Sh. Arun K.
Chakravarty, alongwith his wife and brother-in-law had filed
CS (OS) no. 1275/1990 seeking a declaration that the MoU
dated 26.10.1986 pertaining to the partnership which they
had entered into with late Shri Sushil K. Chakravarty be
declared illegal and not binding on them and this suit was
admittedly directed to be tagged on, though not
consolidated, but listed with CS (OS) no. 1479A/1989. It is
not in dispute that the 2 suits were being listed together,
and thus from said fact one can safely conclude knowledge
of Arun K. Chakravarty that his uncle (sic) late Sh. Sushil K.
Chakravarty and M/s. Tej Properties Pvt. Ltd. were in
litigation as cross plaintiffs and defendants in CS (OS) no.
1348/1996 and CS (OS) no. 2501/1997.
16. His claim that he learnt about the suits only in the month of
February, 2008 is patently false.
... ... ... ...
21. Facts noted herein above would show that if not earlier, at
least when late Sh. Sushil K. Chakravarty filed reply to IA
no. 10161/1997 in CS (OS) no. 1479A/1989, reply being
filed on 25.8.1998, the appellants acquired knowledge of
the fact that pertaining to the agreement to sell dated
17.3.1992 their uncle (sic) late Sh. Sushil K. Chakravarty
and M/s. Tej Properties Pvt. Ltd. were in litigation and cross
suits being CS (OS) no. 1348/1996 and CS (OS) no.
2501/1997 were pending. The 2 have not denied
knowledge of their uncle (sic) having died on 3.6.2003.
Thus, as Class-II heirs, a claim which they stake to inherit
the properties of their uncle (sic), they ought to have taken
steps to seek substitution to prosecute, as plaintiffs in CS
14Page 15
(OS) no. 1348/1996, and defend as defendants CS (OS)
no. 2501/1997, within the limitation period prescribed to do
so. Having knowledge of the pendency of the 2 suits, the
former being dismissed in default on 14.10.2004 and in the
latter their uncle (sic) being proceeded ex-part on 1.8.2000
and the suit being decreed on 25.7.2007, it was too late in
the day for the two to seek restoration of the former and
setting aside of the ex-part decree in the latter by filing
applications in February, 2008. Their claim that they had
no knowledge of the two suits prior to first week of
February, 2008, is a false stand and thus we agree with the
view taken by the learned Single Judge that both of them
failed to show sufficient cause entitling them to have the
delay condoned in preferring IA no. 4531/2008 in CS (OS)
no. 1348/1996 and IA no. 3391/2008 in CS (OS) no.
2501/1997, and thus we dismiss both appeals imposing
costs (one set) in sum of Rs.20,000/- against the appellants
and in favour of the respondent.”
Challenge to the two common orders dated 24.8.2009 and
17.10.2011 passed by the High Court
22. Before us, the only challenge sustainable, consequent upon the
passing of the second common order dated 17.10.2011, has to be
limited to the determination by the High Court, that delay in filing I.A.
nos. 3391 and 4531 of 2008 cannot be condoned on the basis of the
explanation tendered by the applicants (Arun K.C. and Sunil K.C.). On
the parameters laid down by this Court, there would be absolutely no
difficulty in summarily rejecting the claim for condonation of delay,
raised at the behest of the appellant. Firstly, the issue in hand has been
concurrently decided against the appellant by the learned Single Judge
of the High Court on 24.8.2009 followed by the Division Bench on
17.10.2011. It is not the case of the appellant, that the High Court did
not take into consideration certain facts which it ought to have taken into
consideration. It is also not the case of the appellant, that the High
15Page 16
Court wrongly or incorrectly relied upon certain facts, even though the
truthful position was otherwise. In the instant fact situation, there would
be hardly anything for us to determine, except the inevitable rejection of
such a claim based on the parameters laid down by this Court in view of
the admitted factual position noted above.
23. Despite our aforesaid determination, since the issue was hotly
contested at the hands of the learned counsel representing the rival
parties, we would venture to reexamine the same shorn of the
conclusions drawn by the High Court. In the instant determination, it is
first necessary to notice the stance adopted by the appellant (through
legal representatives Arun K.C. and Sunil K.C.) For condonation of
delay, it was pleaded at the behest of the appellant, that Arun K.C. and
Sunil K.C. (the legal heirs/representatives of Sushil K.C.), who had filed
I.A. nos. 3391 and 4531 of 2008, had no knowledge of the property
under reference, nor had they any knowledge of the pending litigation in
connection therewith. The learned Single Judge, while passing the
common order dated 24.8.2009, as also, the Division Bench of the High
Court, while passing the common order dated 17.10.2011, delineated
the stance of the appellant for condonation of delay. The aforesaid
stance is in consonance with the pleadings filed on behalf of Arun K.C.
and Sunil K.C. It is their case, that they were not aware of the
pendency of the litigation relating to agricultural land owned by Sushil
K.C. measuring 8 bighas and 5 biswas with a farm house built thereon
alongwith tubewell, electrcitiy connection etc. falling within the revenue
16Page 17
estate of village Chhatarpur, Tehsil Mehrauli, New Delhi, (also
described as Maharani Rosary) and they became aware of the same
only in the third week of February, 2008. Having become aware of the
same, it is their case, that they immediately moved the High Court for
obtaining certified copies. Having obtained the certified copies in the
last week of February, 2008, without any delay whatsoever, they filed
I.A. no. 3391 of 2008 on 11.3.2008, and I.A. no. 4531 of 2008 on
28.3.2008. If the factual position projected at the hands of the
applicants (Arun K.C. and Sunil K.C.), who had filed the aforesaid two
interlocutory applications, had been correct, there would have been no
difficulty whatsoever, to accept their prayer for condonation of delay.
The fact of the matter however is, that there is ample record to
demonstrate, that the aforesaid factual position is false. In this behalf, it
is relevant to notice, that during the course of the proceedings in CS
(OS) no. 1275 of 1990, filed by one of the legal heirs who has jointly
filed the two interlocutory applications (I.A. nos. 3391 and 4531 of 2008)
with his brother, a prayer was made that Memorandum of
Understanding dated 28.10.1996 depicting the partnership of the
plaintiff with Sushil K.C., be declared illegal. During the course of
hearing before us, the aforesaid CS (OS) no. 1275 of 1990 was ordered
to be tagged with CS (OS) no. 1479A of 1989, wherefrom the factum of
the pending litigation between Sushil K.C. and Tej Properties would
have naturally come to the knowledge and notice of one of the legal
heirs/representatives. The finding recorded in the common order dated
17Page 18
17.10.2011 passed by the Division Bench of the High Court to the
effect, that knowledge pertaining to the agreement to sell dated
17.3.1992 came to be acquired by the applicants in the two interlocutory
applications (I.A. nos. 3391 and 4531 of 2008) from the reply filed by
Sushil K.C. to I.A. no. 10161 of 1997 in CS (OS) no. 1479A of 1989 on
25.8.1998, has not been disputed. Likewise, the fact, that Sushil K.C.
had disclosed in the aforesaid reply to I.A. no. 10161 of 1997 in CS
(OS) no. 1479A of 1989, the pendency of CS (OS) no. 1348 of 1996
and CS (OS) no. 2501 of 1997 between himself (Sushil K.C.) and Tej
Properties, and the further fact that the subject matter of the aforesaid
two cross-suits was the agreement to sell dated 17.3.1992 pertaining to
the land which is subject matter of the present controversy, has also not
been disputed. We would therefore conclude that Arun K.C. and Sunil
K.C., had knowledge about the property of Sushil K.C. which was
subject matter of consideration in CS (OS) no.2501 of 1997 as far back
as on 25.8.1998. We would therefore also conclude, that Arun K.C. and
Sunil K.C. had knowledge of the pending litigation between Sushil K.C.
and Tej Properties as far back as on 25.8.1998. The aforesaid factual
position leaves no room for any doubt in our mind, that the applicants
Arun K.C. and Sunil K.C. (in I.A. nos. 3391 and 4531 of 2008) had full
knowledge about the property which is subject matter of consideration
herein, as also the pending litigation connected therewith, well before
the death of Sushil K.C. on 3.6.2003. There can therefore be no valid
justification for them, to have delayed their participation as legal
18Page 19
heirs/representatives in both the aforementioned suits immediately after
the death of Sushil K.C. (on 3.6.2003). Their efforts to participate in the
two suits commenced on 11.3.2008 (by filing IA no.3391 of 2008 - in CS
(OS) no.2501 of 1997), and on 28.3.2008 (by filing IA no.4531 of 2008 –
in CS (OS) no.1348 of 1996). It is therefore apparent, that the
explanation tendered by the legal heirs/representatives (Arun K.C. and
Sunil K.C.) of the deceased Sushil K.C. in the interlocutory applications
(I.A. nos. 3391 and 4531 of 2008) filed by them for condonation of
delay, was false to their knowledge. Having so concluded, it is
apparent, that the applicants had not approached the High Court for
judicial redress with clean hands. Based on our aforesaid
determination, we are satisfied, that the learned Single Judge (vide
order dated 24.8.2009) and the Division Bench (vide order dated
17.10.2011) were fully justified in not accepting the prayer made by the
legal heirs/representatives of Sushil K.C. for condoning delay in filing
the two interlocutory applications (I.A. nos. 3391 and 4531 of 2008).
The impugned orders passed by the High Court are, therefore, hereby
affirmed.
24. Our aforesaid determination leaves no room for the adjudication
of the controversy on merits. We may, however record, that during the
course of hearing before us, the only submission advanced at the hands
of the learned counsel for the appellant on the merits of the controversy
was based on a challenge raised by the appellant for continuing the
proceedings in CS (OS) no. 2501 of 1997 even after the death of Sushil
19Page 20
K.C. on 3.6.2003 without impleading the legal heirs of the deceased
Sushil K.C. (Arun K.C. and Sunil K.C.) as his legal representatives. In
view of the vehemence with which the submission was advanced, we
shall render our determination thereon, as well. Lest, the appellant
feels that his submissions have not been fully dealt with.
25. Undoubtedly, the issue canvassed on merits has to be examined
with reference to Order XXII Rule 4 of the Code of Civil Procedure.
Order XXII Rule 4 is accordingly reproduced hereunder:-
“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 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-
20Page 21
(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
(b) 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
that 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.”
It is the vehement contention of the learned counsel for the appellant,
that it is imperative for a court to exempt the plaintiff from the necessity
of substituting the legal representatives of a defendant, before
proceeding with the matter. In the absence of any such express
exemption granted by the court, no benefit can be drawn by the plaintiff
who has obtained a finding in his favour, without impleading the legal
representatives in place of the deceased defendant.
26. We have given our thoughtful consideration to the submissions
advanced at the hands of the learned counsel for the appellant. The
real issue which needs to be determined with reference to the
contention advanced at the hands of the learned counsel for the
appellant under Order XXII Rule 4(4) of the Code of Civil Procedure is
whether the learned Single Judge while proceeding with the trial of CS
(OS) no.2501 of 1997 was aware of the death of the plaintiff Sushil K.C.
21Page 22
(the appellant herein). And further, whether the learned Single Judge of
the High Court had thereafter, taken a conscious decision to proceed
with the suit without insisting on the impleadment of the legal
representatives of the deceased defendant Sushil K.C. It is possible for
us, in the facts of this case, to record an answer to the question posed
above. We shall now endeavour to do so. It is not a matter of dispute,
that Sushil K.C. had died on 3.6.2003. It is also not a matter of dispute,
that on 29.8.2003 the plaintiff Tej Properties (the respondent herein)
had filed an interlocutory application, being IA no.9676 of 2003 under
Order XXII Rule 4(4) of the Code of Civil Procedure, for proceeding with
CS (OS) no.2501 of 1997 ex-parte, by bringing to the notice of the
learned Single Judge, that Sushil K.C. had died on 3.6.2003. That
being the acknowledged position, when the learned Single Judge
allowed the proceedings in CS(OS) no.2501 of 1997 to progress further,
it is imperative to infer, that the court had taken a conscious decision
under Order XXII Rule 4(4) of the Code of Civil Procedure, to proceed
with the matter ex-parte as against interests of Sushil K.C., (the
defendant therein), without first requiring Tej Properties (the plaintiff
therein) to be impleaded the legal representatives of the deceased
defendant. It is therefore, that evidence was recorded on behalf of the
plaintiff therein, i.e., Tej Properties (the respondent herein) on
28.1.2005. In the aforesaid view of the matter, there is certainly no
doubt in our mind, that being mindful of the death of Sushil K.C., which
came to his knowledge through IA no.7696 of 2006, a conscious
22Page 23
decision was taken by the learned Single Judge, to proceed with the
matter ex-parte as against the interests of Sushil K.C. This position
adopted by the learned Single Judge in CS (OS) no.2501 of 1997 was
clearly permissible under Order XXII Rule 4(4) of the Code of Civil
Procedure. A trial court can proceed with a suit under the
aforementioned provision, without impleading the legal representatives
of a defendant, who having filed a written statement has failed to appear
and contest the suit, if the court considers it fit to do so. 
All the
ingredients of Order XXII Rule 4(4) of the Code of Civil Procedure stood
fully satisfied in the facts and circumstances of this case.
In this behalf
all that needs to be noticed is, that the defendant Sushil K.C. having
entered appearance in CS (OS) no. 2501 of 1997, had filed his written
statement on 6.3.1998. Thereafter, the defendant Sushil K.C. stopped
appearing in the said civil suit. Whereafter, he was not even
represented through counsel. The order to proceed against Sushil K.C.
ex-parte was passed on 1.8.2000. Even thereupon, no efforts were
made by Sushil K.C. to participate in the proceedings of CS(OS)
no.2501 of 1997, till his death on 3.6.2003. It is apparent, that the trial
court was mindful of the factual position noticed above, and consciously
allowed the suit to proceed further. When the suit was allowed to
proceed further, without insisting on the impleadment of the legal
representatives of Sushil K.C. it was done on the court’s satisfaction,
that it was a fit case to exempt the plaintiff (Tej Properties) from the
necessity of impleading the legal representatives of the sole defendant
23Page 24
Sushil K.C. (the appellant herein). 
This could only have been done, on
the satisfaction that the parameters postulated under Order XXII Rule
4(4) of the Code of Civil Procedure, stood complied. 
The fact that the
aforesaid satisfaction was justified, has already been affirmatively
concluded by us, hereinabove. We are therefore of the considered
view, that the learned Single Judge committed no error whatsoever in
proceeding with the matter in CS (OS) no.2501 of 1997 ex-parte, as
against the sole defendant Sushil K.C., without impleading his legal
representatives in his place. 
We therefore, hereby, uphold the
determination of the learned Single Judge, with reference to Order XXII
Rule 4(4) of the Code of Civil Procedure.
27. For the reasons recorded hereinabove, we find no merit in the
instant appeals and the same are accordingly dismissed.
…………………………….J.
(P. Sathasivam)
…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
March 19, 2013
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