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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  1

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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 sub- rule 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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