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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1457 OF 2013
(Arising out of S.L.P. (C) No.21276 of 2006)
Mata Prasad Mathur (dead) by LRs. …Appellants
Versus
Jwala Prasad Mathur & Ors. …Respondents
WITH
Contempt Petition (C) Nos.11 of 2011 and No.435 of 2011
J U D G M E N T
T.S. THAKUR, J.
1. Leave granted.
2. The short question that arises for determination in this
appeal is
whether the suit filed by the plaintiffs-respondents
seeking a decree for declaration, partition and injunction
against the appellants abated on the failure of the plaintiffs
to file an application for substitution of the Legal
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Representatives of Virendra Kumar one of the defendants.
The trial Court, when approached by the plaintiff for deletion
of the name of the deceased and setting aside of the
abatement, held that the suit had abated in toto and
accordingly dismissed the same. In an appeal filed by the
plaintiffs against that order, the First Appellate Court held
that the trial Court had not properly considered the issue in
the light of the nature of the averments made in the plaint
and the relief sought by the plaintiff. The Court accordingly
set aside the judgment and order passed by the trial Court
with the observation that the demise of Virendra Kumar and
failure of the plaintiff to bring his legal representatives on
record did not affect the maintainability of the suit. The High
Court of Madhya Pradesh has affirmed that order, hence the
present appeal.
3. Having heard learned counsel for the parties, we are
inclined to agree with the order of the First Appellate Court
that the suit had not abated no matter for a reason different
from the one that prevailed with that Court. It is common
ground that Virendra Kumar-defendant was proceeded ex
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parte as he had not appeared to contest the suit or file a
written statement. Substitution of the legal representatives
of such a defendant could be legitimately dispensed with by
the trial Court in view of the provisions of Order XXII Rule 4
Sub-Rule 4, which is as under:
“4. Procedure in case of death of one of several
defendants or of sole defendant.-
(1) xxxxx
(2) xxxxx
(3) xxxxx
(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.”
4. The High Court has, in our view, rightly noticed this
aspect in its order albeit the manner in which the High Court
dealt with the same is not all that satisfactory. Be that as it
may, so long as the power of exemption was available to the
trial Court, the same could and ought to have been exercised
by the First Appellate Court while hearing an appeal assailing
the dismissal of the suit as abated.
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5. We may at this stage briefly trace the history of the
amendment of Order XXII, Rule 4 only to highlight the
purpose underlying the same. The Law Commission had,
despite noticing that many of the High Courts had made local
amendments to incorporate Sub-Rule (4) to Rule 4 to Order
XXII, made its recommendations against a similar
incorporation. In the 27th Report of the Law Commission
of India, on the amendment to the Code of Civil Procedure,
1908, the Commission noted at p.210,
“Order XXII, rule 4 – relaxation of
The question whether the court should have power to
grant exemption in respect of the requirement of
substitution in a proper case has been considered.
Local amendments giving such power have been
made by the High Courts of Calcutta, Madras, Orissa,
etc., in respect of a defendant who has failed to
appear and contest the suit. It is, however, felt that
such a change should not be made, as it would
impinge upon the rule that litigation should not
proceed in the absence of the heirs of a person who
is dead. These local Amendments have not,
therefore, been adopted”.
6. In the 54th Report of the Law Commission, the
matter was once more taken up for consideration by the
Commission. The Report notes in Chapter 22 at p.193,
”Order 22, rule 4 – power to relax – whether
should be given
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22.2. The first point concerns Order 22, rule 4,
under which non-substitution of a legal
representative leads to abatement of the suit. The
question whether the Court should, in a proper case,
have power to grant exemption in respect of the
requirement of substitution of the legal
representative was considered in the earlier Report.
The Commission noted that local amendments
giving such power had been made by the High
Courts of Calcutta, Madras, Orissa, etc., in respect of
a defendant who has failed to appear and contest
the suit. It however, felt that such a change should
not be made, as it would impinge upon the rule that
litigation should not proceed in the absence of the
heirs of a person who is dead. These local
Amendments were not therefore, adopted.
22.3. We considered the matter further. At one
stage we were inclined to add sub-rule (4) in Order
22, rule 4 as follows:-
“(4) The Court, whenever it seems fit, may exempt
the plaintiff from the necessity to substitute the
legal representative of any defendant against
whom the case has been allowed to proceed 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 in such a case may be pronounced
against such defendant notwithstanding the
death of such defendant, and shall have the
same force and effect as if it had been
pronounced before the death took place.”
22.4. We have however, come to the conclusion
that any such amendment would amount to
passing a decree against a dead man and would
be wrong in principle. Hence no change is
recommended”.
7. Interestingly, the Amendment that followed the 54th
Law Commission Report of 1973, substantially introduced
Order XXII Rule 4(4) to the Code of Civil Procedure, vide
s.73(i) of Act 104 of 1976. It is noteworthy that in the
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original Bill, the provision of Order XXII Rule 4(4) was not
included. The Bill was then referred to the Joint Committee
and a recommendation made for the inclusion of a provision
akin to Rule 4(4). The Joint Committee noted:
“55. Clause 73 (Original clause 76) – (i) The
Committee were informed during the course of
evidence by various witnesses that delay in the
substitution of the legal representatives of the
deceased defendant was one of the causes of delay
in the disposal of suits. The Committee were also
informed that, as a remedial measure, the Calcutta,
Madras, Karnataka and Orissa High Courts had
inserted a new sub-rule in Rule 4 of Order XXII to
the effect that substitution of the legal
representatives of a non-contesting defendant would
not be necessary and the judgment delivered in the
case would be as effective as it would have been if it
had been passed when the defendant was alive.
The Committee are, therefore, of the view that
in order to avoid delay in the substitution of the
legal representatives of the deceased defendant and
consequent delay in the disposal of suits, similar
provision may be made in the Code itself.
New subrule 3A in rule 4 of Order XXII has been inserted
accordingly”.
8. The Joint Committee, accordingly, inserted the following
provision in the Amendment Bill, which was later
incorporated through the Amendment.
“73. In the First Schedule, in Order XXII,–
(i) in Rule 4, after sub-rule (3), the following sub rules shall be inserted,
namely:-
“(4) The Court whenever it thinks fit, may exempt
the plaintiff from the necessity of substituting
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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 and shall have the same force
and effect as if it has been pronounced before
death took place.”
9. It would appear from the above that the Legislature
incorporated the provision of Order XXII Rule 4(4) with a
specific view to expedite the process of substitution of the
LRs of non-contesting defendants. In the absence of any
compelling reason to the contrary the Courts below could and
indeed ought to have exercised the power vested in them to
avoid abatement of the suit by exempting the plaintiff from
the necessity of substituting the legal representative of the
deceased defendant-Virendra Kumar. We have no manner of
doubt that the view taken by the First Appellate Court and
the High Court that, failure to bring the legal representatives
of deceased Virendra Kumar did not result in abatement of
the suit can be more appropriately sustained on the strength
of the power of exemption that was abundantly available to
the Courts below under Order XXII Rule 4 (4) of the CPC.
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10. It is important to note that
the legal representatives of
Virendra Kumar, deceased, have already been brought on
record in place of Devendra Kumar, their uncle (Virendra
Kumar’s brother) who died issueless. They can, therefore,
represent the estates left behind by both Virendra Kumar
and Devendra Kumar. Grant of exemption in that view is only
a matter of maintaining procedural rectitude more than any
substantial adjudication of the matter in controversy. This
Court has at any rate adopted a liberal approach in setting
aside abatement of suits.
11. In the result this appeal fails and is, hereby, dismissed.
The trial Court shall now proceed to dispose of the suit on
merits as early as possible. No costs.
Contempt Petition (C) Nos.11 of 2011 and No.435 of
2011
12. We have heard learned counsel for the parties and
examined the averments made in the contempt petitions. We
do not consider it necessary to take any further action in
these petitions in which the parties appear to be accusing
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each other of committing contempt of this Court. The
contempt petitions are, therefore, dismissed.
………………….……….…..…J.
(T.S. Thakur)
…………………………..…..…J.
(Gyan Sudha Misra)
New Delhi
February 20, 2013
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