Suman & ors. vs Vaishno Saroop & Ors.

In an ejectment suit petitioners want to be brought on record as legal representatives of deceased defendants. The trial court has dispensed with

their substitution under Order XXII Rule 4 (4) of C.P.C, Hence, this revision petition calling in question the competence of court below to grant

exemption, The short point inviting determination is whether learned SubJudge has travelled beyond the boundaries of order XXII Rule 4 (4) CPC,

while granting exemption. The relevant provision is extracted hereunder :

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 judgement 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 it has been

pronounced before death took place."" .

A bare perusal of the provision shows that it confers power on the court to exempt theplaintiff from the necessity of substituting the legal

representatives of any such defendant :

who has failed to file a written statement, or

who having filed has failed to appear and contest the suit at the hearing.

The power to grant exemption is, therefore, circumscribed and is exercisable on existance of conditions contemplated in Rule 4 (4). No exemption

is liable to be granted where a defendant has filed the written statement and has appeared and contested the suit. The intention and scheme behind

the provision is to eliminate possibility of waste of time and prolonging of proceedings in a suit which is not seriously contested by a defendant.

In the present case trial court has dispensed with, the substitution of legal representatives oh considerations other than those envisaged by Order

XXII Rule 4 (4) CPC. It has done so on twin grounds :

I. that counsel for other defendants refused to appear for petitioners (proposed legal representatives); and

II. that petitioners were not in possession of suit property.

In my opinion, both these grounds made basis for grant of exemption, are alien to requirements of Order XXII Rule 4 (4) CPC and, therefore,

substitution of petitioners would not have been dispensed with. The trial court has gravely erred and misdirected itself while appreciating the scope

of power conferred under Order XXII Rule 4(4). Even otherwise the grounds relied upon by the SubJudge should not have formed any basis for

granting of exemption. How could petitioners be faulted for refusal to appear by counsel for on recod defendants when they had not been brought

on record and no notice had gone to them to appear' and defend the suit. Likewise how was it germane to proceedings for bringing legal

representatives on record, whether petitioners were in fact in possession of suits property or not.

I also find from record that plaintiff had filed an application for bringing petitioners on record as legal representatives of deceased defendants

Darbara Chand and Ashok Kumar. No prayer had been made by them for dispensing with substitution of petitioners as legal representatives. This

application has been side tracked by the court below while passing impugned order dated Dec. 10. 1987.

The trial court has also generated total confusion in its interim orders. In some it is recorded that legal representatives of deceased defendants

were brought on record by appellate court and in others it is indicated that plaintiff was called upon to bring legal represedatives on record after the

matter was remanded back by the high court. All told proceeding conducted by the trial court reflect a way ward approach.

In the result, I allow this revision petition and set aside the order dated Dec. 10, 1987 and direct the trial court to consider and dipose of the

application of the plaintiff for bringing the petitioners on record and to proceed in the matter judicially and pass appropriate orders thereon.

The record of the case shall be returned to the trial court forthwith.