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“  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 intra-

court  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  

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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/-  

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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.  

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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)  

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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  

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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.

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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.

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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.)  

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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  

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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  

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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  

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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  

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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.

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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  

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(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  

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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  

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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  

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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  

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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  

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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-

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(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.  

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(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  

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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  

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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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