SUSHIL K. CHAKRAVARTY (D) THR. LRS.versusM/S. TEJ PROPERTIES PVT. LTD.

                   [2013] 5 S.C.R. 243

        SUSHIL K. CHAKRAVARTY (D} THR. LRS.                    A
                             v.
            M/S. TEJ PROPERTIES PVT. LTD.
          (Civil Appeal Nos. 2600-2601 of 2013)
                     MARCH 19, 2013
                                                               B
[P. SATHASIVAM AND JAGDISH SINGH KHEHAR, JJ.]

     Code of Civil Procedure, 1908 - Order XX/I, rule 4(4) -
Suit pending before High Court - Death of sole defendant
during pendency of the suit - High Court proceeded with the C
matter ex-parte, as against the sole defendant, without
impleading his legal representatives in his place - Justification
- Held: On facts, the defendant had filed a written statement
but had thereafter failed to appear and contest the suit - High
Court had taken a conscious decision u!Order XX/I Rule 4(4), D
to proceed with the matter ex-parte as against interests of such
a defendant, without first requiring the plaintiff to implead the
legal representatives of the deceased defendant - This was
clearly permissible u/Order XX/I Rule 4(4) - It was done on
the High court's satisfaction, that it was a fit case to exempt E
the plaintiff from the necessity of impleadin'g the legal
representatives of the sole defendant - Determination of the
High Court, with reference to Order XX// Rule 4(4),
accordingly, upheld.

    During pendency of a suit before a Single Judge of         F
the High Court, the sole defendant died. The Single Judge
continued the suit proceedings without impleading the
legal heirs of the sole defendant as his legal
representatives, and thereafter pronounced its judgment.
                                                               G
     The question which arose for consideration in the
instant appeals was whether it is imperative for a court
to exempt the plaintiff from the necessity of substituting
the legal representatives of a defendant, befo~·
                            243                                H
   244      SUPREME COURT REPORTS               [2013] 5 S.C.R.


A proceeding with the matter and 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.
B
       Dismissing the appeals, the Court

        HELD: 1. It is not a matter of dispute, that the
   defendant 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 had filed an interlocutory application, being IA
   no.9676 of 2003 under Order XXll Rule 4(4) CPC, for
   proceeding with CS (OS) no.2501 of 1997 ex-parte, by
   bringing to the notice of the Single Judge of the High
   Court, that Sushil K.C. had died on 3.6.2003. That being
   the acknowledged position, when the 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 XXll Rule 4(4)
   CPC, to proceed with the matter ex-parte as against
   interests of Sushil K.C., without first requiring Tej
   Properties to implead the legal representatives of the
   deceased. defendant. It is therefore, that evidence was
   recorded on behalf of the plaintiff Tej Properties on
   28.1.2005. In the aforesaid view of the matter, there is
   certainly no doubt, that being mindful of the death of
   Sushil K.C., which came to his knowledge through IA
   no.7696 of 2006, a conscious decision was taken by the
   Single'Judge, to proceed with the matter ex-parte as
   against the lnterests of Sushil K.C. Tliis position adopted
   by the Single Judge in CS (OS) no.2501 of 1997 was
   clearly permissible under Order XXll Rule 4(4) of CPC. 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
   SUSHIL K. CHAKRAVARTY (D) THR. LRS. v. TEJ            245
              PROPERTIES PVT. LTD.
court considers it fit to do so. All the ingredients of Order   A
XXll Rule 4(4) CPC stood fully satisfied in the facts and
circumstances of this case. 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 Sushi! K.C. stopped appearing in the said civil       B
suit. Whereafter, he was not even represented through
counsel. The order to proceed against Sushi! K.C. ex-
parte was passed on 1.8.2000. Even thereupon, no efforts
were made by Sushi! K.C. to participate in the
proceedings of CS(OS) no.2501 of 1997, till his death on        c
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.         D
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 Sushi! K.C. This could only have been
done, on the satisfaction that the parameters postulated        E
under Order XXll Rule 4(4) CPC, ·stood complied. The
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 Sushi! K.C., without
impleading his legal representative·s in his place.
Therefore, the determination of the Single Judge, with          F
reference to Order XXll Rule 4(4) CPC, is upheld. [Para 26)
[264-F-H, 265-A-H; 266- A-C]

    CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
2600-2601 of 2013                                               G

    From the Judgment & Order dated 17.10.2011 of the High
Court of Delhi at New Delhi in FAO (OS) No. 516 & 517 of
2009.

    Shyam Divan, Pratap Venugopal, Surekha Raman, Anuj          H
    246       SUPREME COURT REPORTS                [2013) 5 S.C.R.


A   Sarma, Rakesh Sinha, Gaurav Nair (for K.J. John & Co.) for
    the Appellants.

          Manoj Goel, Shuvodeep Roy, Gopal Verma, Viprma Gura
    for the Respondent.
B         The Judgment of Court was delivered by

          JAGDISH SINGH KHEHAR, J. 1. Leave granted.

        2. The impugned order herein dated 17.10.2011 was
C 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 FAQ (OS) no.
  517 of 2009. Both the aforesaid intra-court appeals had been
  filed by Sushil K. Chakravarty (hereinafter referred to as, Sushil
D 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,
E New Delhi. This property has also been described as Maharani
  Rosary. It would be relevant to 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
F the other filed by Sushil K.C., bearing CS (OS) no. 1348 of
  1996, against Tej Properties. In order to effectively ur:iderstand
  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
G 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
H of an agreement to sell, executed by the plaintiff Tej Properties
  SUSHIL K. CHAKRAVARTY (D) THR. LRS. v. TEJ    247
PROPERTIES PVT. LTD. [JAGDISH SINGH KHEHAR, J.]
with the defendant Sushil K.C. on 17.3.1992. The aforesaid           A
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,       s
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            c
passed on by cheque (comprising of two cheques of
Rs.7,00,000/- each, and one cheque of Rs.6,00,000/-). The
balance Rs.2,Q0,000/- 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           D
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        E
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      F
n.otice 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.                                                     G
     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
                                                                     H
    248       SUPREME COURT REPORTS                 [2013] 5 S.C.R.


A 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. 2501 of 1997. It would be relevant to mention, that the
B   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 XXll Rule 4(4) of the Code of Civil
c   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 Propert
    es on 28.1.2005. On 9.8.2005, the High Court directed the pla
    ntiff Tej Properties to place on the record of the civil suit, the
    original agreement to sell dated 17.3.1992. The High Court
D   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.
E   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 subj
    ct matter of the agreement to sell dated 17.3.1992) which
F   ad 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
G   High Court decreed CS (OS) 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 am'ount
H   was payable by the plaintiff Tej Properties to the defendant
  SUSHIL K. CHAKRAVARTY (D) THR. LRS. v. TEJ    249
PROPERTIES PVT. LTD. [JAGDISH SINGH KHEHAR, J.]
Sushil K.C. in lieu of the balance sale consideration, as the         A
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             8
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 XXll 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    C
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:                    D

      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 their deceased brother Sushil K.C., for      E
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 tend~red by the applicants, who
were brothers of Sushil K.C. was, that they had become aware          F
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              G
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-applicanUplaintiff Tej Properties filed its reply
to I.A no. 3391 of2008on14.11.2008. Thereupon, the learned            H
    250       SUPREME COURT REPORTS                 [2013) 5 S.C.R.


A   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.
s   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.

       9. The plaintiff Tej Properties in CS (OS) no. 2501 of 1997
C is the respondent in the instant appeals. The defendant Sushi!
  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.

D CS (05) no. 1348 of 1996

         10. On 23.5.1996, Sushi! 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)
E   stood terminated. In this behalf, it would be pertinent to mention,
    that Sushi! 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
    soughi possession of the property, which was subject matter
F   of the agreement to sell dated 17.3.1992. Additionally, the
    plaintiff Sushi! 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
G 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 Sushi! K.C. was not
  represented in CS (OS) no. 1348 of 1996 after 3.6.2003, the
H
  SUSHIL K. CHAKRAVARTY (D) THR. LRS. v. TEJ    251
PROPERTIES PVT. LTD. [JAGDISH SINGH KHEHAR, J.]

said suit came to be dismissed in default for non-prosecution,           A
on 14.10.2004.

     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         B
K.C. and Sunil K.C., in their capacity as legal representatives
of their deceased brother Sushi! 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              C
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 Sushi! 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           D
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.
                                                                         E
      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            F
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.) filed an intra-court appeal, i.e. FAO (OS) no.
517 of 2009. By an order dated 17.10.2011, a Division Bench              G
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.
                                                                         H
    252     SUPREME COURT REPORTS               [2013) 5 S.C.R.


A   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. 1348of1996,
  through his legal representatives Arun K.C. and Sunil K.C., is
B the appellant in the instant appf:!als. 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
c
        16. The first common order in the controversy in hand was
  passed by the learned Single Judge of the High Co.urt on
  24.8.2009, whereby two interlocutory applications filed by the
  legal representatives of the appellant Sushil K.C. came to be
0 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 1'3 of the
  Code of Civil Procedure, for recalling the ex-parte judgment/
  decree dated 25.7.2007, whereby, CS (OS) no. 2501 of 1997
E 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 Procedure, for restoration of CS
  (OS) no. 1348 of 1996 which had been dismissed in default
  for non-prosecution, on 14.10.2004.
F
       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.
G 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. 1348of1996)
  was filed on 28.3.2008. The delay in filing the aforementioned
  interlocutory applications was sought to be explained by
H asserting, that Arun K.C. and Sunil K.C. (the legal heirs/
  SUSHIL K. CHAKRAVARTY (D) THR. LRS. v. TEJ    253
PROPERTIES PVT. LTD. [JAGDISH SINGH KHEHAR, J.]
representatives of Sushi! K.C., who had filed the aforesaid           A
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          B
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:-                                                        c
     "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           D
     brought on record by the plaintiff (TPPL) show that the
     applicants were aware of these proceedings even during
     the earlier rounds of litigation involving late Sushil K.
     Chakravarty to which they were also parties. Therefore,
     reasons given for the delay in ~pproaching the Court are         E
     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         F
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      G
           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
                                                                      H
    254         SUPREME COURT REPORTS                  [2013] 5 S.C.R.


A                XXll 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
B                the provisions of Order XXll 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
c                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.
D
          23.    The judgment in Elisa vs. A. Dass, AIR 1992 Mad.
                 159, reiterated that the order granting exemption in
                 terms of Order XXll Rule 4(4) CPC has to precede
                 the judgment. It was held that it was not necessary
E                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
F                exempted from substituting the deceased defendant
                 in terms of Order XXll Rule 4(4) CPC and
                 thereafter proceeded to decree the suit. The
                 judgments in Zahirul Islam vs. Mohd. Usman,
                 (2003) 1 SCC 4 76, and T. Gnanvel vs. T. S.
G                Kanagaraj, JT 2009 (3) SC 196, do not hold
                 anything to the contrary. They only reiterate the
                 necessity for compliance with Order XXll Rule 4(4)
                 CPC before the judgment is pronounced. In the
                 considered view of this Court, the judgment and
H                decree dated 24th July, 2007 passed by this Court
  SUSHIL K. CHAKRAVARTY (D) THR. LRS. v. TEJ    255
PROPERTIES PVT. LTD. [JAGDISH SINGH KHEHAR, J.]
            is fully compliant with the requirement of Order XXll     A
            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
                                                                      B
      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             C
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          D
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   F
9 and 13 of the Code of Civil Procedure should be condoned.
It 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          G
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.               H
    256         SUPREME COURT REPORTS                [2013] 5 S.C.R.


A        21. We m¥ly 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:-
B
          "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. 1479N1989 were filed
c              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
D              (OS) no. 250111997 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.
E
          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.
F                1348/1996 and CS (OS) no. 2501/1997, it cannot
                 be inferred that the applicants also had knowledge
                 of the 2 suit~. ·

          14.    It is not disputed that the wife of applicant no. 2 has
                 cordial relations with him and resides with him.
G                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
H                requires an inference to be drawn based on normal
      SUSHIL K CHAKRAVARTY (D) THR. LRS. v. TEJ     257
    PROPERTIES PVT. LTD. [JAGDISH SINGH KHEHAR, J.]

•                human conduct i.e. of a matter of vital interest· A
                 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 8
                 the two cross suits between late Sh. Sushil K.
                 Chakravarty and Mis. Tej Properties Pvt. Ltd.

        15.     As noted by us tie rein above, applicant no. 2 Sh.
                Arun K. Chakravarty, alongwith his wife and brother-
                 in-law had filed CS (OS) no. 127~11990 seeking a
                                                                          c
                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          D
                 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      E
                 and Mis. Tej Properties Pvt. Ltd. were in litigation
                 as cross plaintiffs and defendants in CS (OS) no.
                  134811996 and CS (OS) no. 250111997.

        16.     His claim that he learnt about the suits only in the      F
                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     G
                filed reply to IA no: 1016111997 in CS (OS) no.
                14 79Al1989, 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) fate Sh. Sushil K. Chakravarty and      H
    258      SUPREME COURT REPORTS                [2013) 5 S.C.R.


A              Mis. 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
B              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 (OS)
               no. 1348/1996, and defend as defendants CS (OS)
               no. 2501/1997, within the limitation period
c              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
D
               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
E              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
F              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
G 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
H
  SUSHIL K. CHAKRAVARTY (D) THR. LRS. v. TEJ    259
PROPERTIES PVT. LTD. [JAGDISH SINGH KHEHAR, J.]
cannot be condoned on the basis of the explanation tendered           A
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             B
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 Court wrongly    c
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          D
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        E
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        F
filed I.A. nos. ~391 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       G
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 bef°lalf 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 agricul~µral      H
    260       SUPREME COURT REPORTS                 [2013) 5 S.C.R.


A   land owned by Sushi! K.C. 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, (also described as
    Maharani Rosary) and they became aware of the same only in
B   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,
c   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
D   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 Sushi!
    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
F   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 17.10.2011 passed by
    the Division Bench of the High Court to the effect, that
G   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
    filecfby Sushil K.C. to I.A. no. 10161 of 1997 in CS (0$) no.
    1479A·of 1989 on 25.8.1998, has not been disputed. Likewise,
H   the fact, that Sushil K.C. had disclosed in the aforesaid reply
   SUSHIL K. CHAKRAVARTY (D) THR. LRS. v. TEJ    261
 PROPERTIES PVT. LTD. [JAGDISH SINGH KHEHAR, J.]

to I.A. no. 10161 of 1997 in CS (OS) no. 1479A of 1989, the            A
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       B
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             c
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
                                                                       0
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 heirs/
 representatives in both the aforementioned suits immediately
after the death of Sushil K.C: (on 3.6.2003). Their efforts to         E
 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.)         F
 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              G
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/representativ~
of Sushil K.C. for condoning delay in filing the two interlocutory     H
    262         SUPREME COURT REPORTS              [2013] 5 S.C.R.


A 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
8
  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 K.C.
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
D have not been fully dealt with.

       25. Undoubtedly, the issue canvassed on merits has to be
  examined with reference to Order XXll Rule 4 of the Code of
  Civil Procedure. Order XXll Rule 4 is accordingly reproduced
E 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
F                right to sue does not survive against the surviving
                 defendant or defendants alone, O( 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
G                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.
H
  SUSHIL K. CHAKRAVARTY (D) THR. LRS. v. TEJ    263
PROPERTIES PVT. LTD. [JAGDISH SINGH KHEHAR, J.]
    (3)   Where within the time limited by law no application       A
          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             B
          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           C
          shall have the same force and effect as if it has
          been pronounced before death took place.

    (5)   Where-
                                                                    D
          (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        E
                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       F
                abatement and als.o 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      G
                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."
                                                                    H
    264       SUPREME COURT REPORTS                  [2013) 5 S.C.R.


A   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
8   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
C   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 XXll 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
D   1997 was aware of the death of the plaintiff Sushil K.C. (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
E   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
F   interlocutory application, being IA no.9676 of 2003 under Order
    XXll 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
G   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 XXll
    Rule 4(4) of the Code of Civil Procedure, to proceed with the
    matter ex-pa rte as against interests of Sushi I K. C., (the
H   defendant therein), without first requiring Tej Properties (the
   SUSHIL K. CHAKRAVARTY (D) THR. LRS. v. TEJ    265
 PROPERTIES PVT. LTD. [JAGDISH SINGH KHEHAR, J.]
plaintiff therein) to be impleaded the legal representatives of      A
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               B
knowledge through IA no.7696 of 2006, a conscious 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 XXll Rule        c
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
                                                                     0
ingredients of Order XXll 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             E
 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            F
 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           G
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 Sushil K.C. (the appellant
herein). This could only have been done, on the satisfaction that
the parameters postulated under Order XXll Rule 4(4) of the          H
    266      SUPREME COURT REPORTS             [2013) 5 S.C.R.


A 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
B in CS (OS) no.2501 of 1997 ex-parte, as against the sole
  defendant Sushil K.C., without impleading his regal
  representatives in his place. We therefore, hereby, uphold the
  determination of the learned Single Judge, with reference to
  Order XXll Rule 4(4) of the Code of Civil Procedure.
c       27. For the reasons recorded hereinabove, we find no
    merit in the instant appeals and the same are accordingly
    dismissed.

    B.B.B.                                 Appeals dismissed.