MATA PRASAD MATHUR (DEAD) BY LRS.versusJWALA PRASAD MATHUR & ORS.

                        [2013] 1 S.C.R. 1106


A           MATA PRASAD MATHUR (DEAD) BY LRS.
                                  v.
                JWALA PRASAD MATHUR & ORS.
                 (Civil Appeal No. 1457 of 2013)
                        FEBRUARY 20, 2013
B
         [T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]

        Code of Civil Procedure, 1908 - Or.22, r.4(4) - Suit for
  declaration, partition and injunction - Death of a non-
e contesting defendant - Failure of the plaintiffs-respondents to
  bring on record the LRs of such defendant - Held: Did not
  result in abatement of the suit - Requirement of substitution
  of the LRs of such non-contesting defendant could be
  legitimately dispensed with by the Court by virtue of the power
D of exemption abundantly available to it under Or.22, r.4(4).
       The question that arose for determination in the
  present appeal was whether the suit filed by the plaintiffs-
  respondents seeking a decree for declaration, partition
E and injunction against the appellants abated on the
  failure of the plaintiffs to file an application for substitution
  of the Legal Representatives of a deceased defendant 'V'.
  The trial Court, when approached by the plaintiff for
  deletion of the name of the deceased defendant 'V' and
  setting aside of the abatement, held that the suit had
F 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
G plaintiff. The Court accordingly set aside the judgment
  and order passed by the trial Court with the observation
  that the demise of 'V' and failure of the plaintiff to bring
  his legal representatives on record did not affect the

H                               1106
MATA PRASAD MATHUR (DEAD) BY LRS. v. JWALA 1107
          PRASAD MATHUR & ORS.
maintainability of the suit. The High Court affirmed that      A
order, and hence the instant appeal.

    Dismissing the appeal, the Court

    HELD: 1. This Court is inclined to agree with the
order of the First Appellate Court that the suit had not       B
abated no matter for a reason different from the one that
prevailed with that Court. It is common ground that 'V'-
defendant was proceeded ex parte as he had not
appeared to contest the suit or file a written statement.
Substitution of the legal representatives of such a            C
defendant could be legitimately dispensed with by the trial
Court in view of the provisions of Order XXll Rule 4 Sub-
Rule 4. The High Court 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   D
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. [Paras 3, 4]
[1109-E-F; 1110-C-D]                                           E

     2. The history of the amendment of Order XXll, Rule
4 may be traced to highlight the purpose underlying the
same. The Legislature incorporated the provision of Order
XXll Rule 4(4) with a specific view to expedite the process
of substitution of the LRs of non-contesting defendants.       F
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       G
defendant-'V'. The view taken by the First Appellate Court
and the High Court that, failure to bring the legal
representatives of deceased did not result in abatement
of the suit can be more appropriately sustained on the
strength of the power of exemption that was abundantly         H
    1108    SUPREME COURT REPORTS                [2013] 1 S.C.R.

A   available to the Courts below under Order XXll Rule 4 (4)
    of the CPC. [Paras 5, 9) [1110-E; 1113-E-G]

      3. In the case at hand, the legal representatives of the
  deceased defendant 'V' have already been brought on
  record in place of their uncle (V's brother) who died
8
  issueless. They can, therefore, represent the estates left
  behind by both the brothers. 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
C approach in setting aside abatement of suits. The trial
  court shall now proceed to dispose of the suit on merits
  expeditiously. [Para 10 & 11) [1113-H; 1114-A-C]

      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
D 1457 of 2013.
        From the Judgment & Order dated 21.04.2006 of the High
    Court of Madhya Praesh, Judicature Jabalpur, bench at Gwalior
    in Second Appeal No. 1454 of 2005.
E                               WITH

    Contempt Petition (C) No. 11 & 435 of 2011 in SLP (C) No.
    21276 of 2006.

F       Shiv Sagar Tiwari, Sangeeta Gaur, Mahabir Singh Magla,
    Vikas Mehta for the Appellants.

         lndu Malhotra, Vivek Jain, Chinmayee Chantra, Kush
    Chaturvedi, Vikas Mehta, Puneet Jain, Christi Jain, Pratibha
    Jain for the Respondents.
G
        The Judgment of the Court was delivered by

        T.S. THAKUR, J. 1. Leave granted.

        2. The short question that arises for determination in this .
H
MATA PRASAD MATHUR (DEAD) BY LRS. v. JWALA 1109
   PRASAD MATHUR & ORS. [T.S. THAKUR, J.]
 appeal is whether the suit filed by the plaintiffs-respondents A
 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 Representatives
 of Virendra Kumar one of the defendants. The trial Court, when
 approached by the plaintiff for deletion of the name of the B
 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 c
 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 D ·
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        E
the one that prevailed with that Court. It is common ground that
Virendra Kumar-defendant was proceeded ex 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      F
of the provisions of Order XXll Rule 4 Sub-Rule 4, which is as
under:

     "4. Procedure in case of death of one of several
     defendants or of sole defendant.-                               G
     (1) xxxxx

     (2) xxxxx

     (3) xxxxx
                                                                     H
    1110     SUPREME COURT REPORTS                 (2013] 1 S.C.R.


A       (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
B       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, rig~tly noticed this
C aspect in its order albeit the manner in which the High Court
  dealt with the same is not all tbat 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
D dismissal of the suit as abated.

       5. We may at this stage briefly trace the history of the
  amendment of Order XXll, Rule 4 only to highlight the purpose
  underlying the same. The Law Commission had, despite
E noticing that many of the High Courts had made local
  amendments to incorporate Sub-Rule (4) to Rule 4 to Order
  XXll, 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,
F the Commission noted at p.210,

         "Order XX/I, rule 4 - relaxation of

         The question whether the court should have power to
         grant exemption in respect of the requirement of
G        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
H        made, as it would impinge upon the rule that litigation
MATA PRASAD MATHUR (DEAD) BY LRS. v. JWALA 1111
   PRASAD MATHUR & ORS. [T.S. THAKUR, J.]
   . should not proceed in the absence of the heirs of a             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 t~e Commission.
                                                                     B
The Report notes in Chapter 22 at p.193,

    "Order 22, rule 4 - power to relax - whether should be
    given

      22. 2. The first point concerns Order 22, rule 4, under        c
      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      D
      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 shouJd not be made, as it would impinge          E
      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         F
    follows:-

     "(4)     The Court, whenever it seerris fit, may exempt the
              plaintiff from the necessity to substitute the legal
              representative of any defendant against whom the       G
            · 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                   H
    1112    SUPREME COURT REPORTS                [2013] 1 S.C.R.


A              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
B
               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
C Commission Report of 1973, substantially introduced Order
  XXll Rule 4(4) to the Code of Civil Procedure, vide s.73(i) of
  Act 104 of 1976. It is noteworthy that in the original Bill, the
  provision of Order XXll Rule 4(4) was not included. The Bill was
  then referred to the Joint Committee and a recommendation
D 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
E       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
F       Order XX/I 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.
G
              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
H       provision may be made in the Code itself. New sub-rule
MATA PRASAD MATHUR (DEAD) BY LRS. v. JWALA 1113
   PRASAD MATHUR & ORS. [T.S. THAKUR, J.]
    3A in rule 4 al Order XX/I has been inserted accordingly''.        A

    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 XX/I,-                        B

    (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          C
            ·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 and shall           D
             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 XXll Rule 4(4) with a E
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 F
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 G
suit can be more appropriately sustained on the strength of the
power of exemption that was abundantly available to the Courts
below under Order XXll Rule 4 (4) of the CPC.

    10. It is important to note that the legal representatives of
                                                                       H
    1114     SUPREME COURT REPORTS                   [2013] 1 S.C.R.

A 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
8 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.

C        11. In the result this appeal fails and is, hereby, dismissed.
    The trial Court shall ·now proceed to dispose of th"e suit on
    merits as early as possible. No costs.

    Contempt Petition (C) Nos.11 of 2011 and No.435 of 2011

0       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 each other
  of committing contempt of this Court. The contempt petitions
E are, therefore, dismissed.

    8.8.8.               Appeal & Contempt Petitions dismissed.