Wednesday, 29 July 2015

When court can decide suit without bringing legal representative of deceased deft on record?

The provision of Order XXII Rule 4 CPC is as under :-
“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-
(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.”
The Apex Court has held that in view of this
provision the Court can decide to proceed ex parte even
after death of a defendant without Legal Representative of
deceased defendant if parameters of Order XX Rule 4(4)
CPC are complied with. The object behind this provision
needs to be kept in mind and the power given to the Court
can be used in a case like present one.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Civil Application No.12021 of 2012
In
Second Appeal No.117 of 2011
Prabhakar s/o Apparao Pawar
And Another. .. Applicants.
Versus
Vaijnath s/o Babarao Pawar
And Others. .. Respondents.


CORAM: T.V. NALAWADE, J.
DATE : 13th MARCH 2014
Citation;2015(4) ALLMR 273

1) The first application is filed by the appellant for
condonation of delay of 981 days caused in bringing legal
representatives of deceased respondent No.3 (original
defendant No.2 - Pralhad) on the record and also for
setting aside abatement and for bringing legal
representatives of deceased defendant No.2-Pralhad on
the record. The second application is filed by present
respondent No.1 (original plaintiff) for dismissal of the
appeal on the ground that legal representatives of present
respondent No.3-Pralhad were not brought on record of
Regular Civil Appeal No.19 of 2008 which was pending in
District Court and if the said appeal had abated
automatically, the present proceeding also needs to be
treated as abated entirely. Both the sides are heard.
2) Regular Civil Suit No.28 of 2002 was filed by
present respondent No.1 for relief of partition and
separate possession of his alleged share in the landed

property. It is his case that defendant No.1-Apparao
(deceased father of appellant ) was his step brother and
defendant No.2 (Pralhad, present respondent No.3) was
also his step brother. It is the contention of the plaintiff
that the suit property is ancestral and joint Hindu family
property of himself and defendant Nos.1 and 2. Defendant
No.1, Apparao contested the suit. He disputed the relation
of plaintiff with him and he contended that the plaintiff is
not the son of father of defendant No.1. He also contended
that defendant No.2 is also not his brother, he is also not
son of his father.
3) The suit proceeded ex parte against defendant
No.2-Pralhad. The trial Court held that defendant No.1
and defendant No.2 and also the plaintiff each have onethird
share in the suit property. The trial Court held that
the plaintiff has proved that he is son of father of
defendant No.1. In the mean time, defendant No.1-
Apparao died and appeal came to be filed in District Court
by his sons, present applicants. Both, plaintiff and
defendant No.2 appeared in the appeal. Defendant-
Pralhad was represented by his counsel in the appeal.

After death of Pralhad learned counsel for Pralhad did not
give information to the Lower Appellate Court that
Pralhad was dead. In view of this, the appeal as it is was
decided.
4) It is the case of the present applicants that
they came to know about death of Pralhad recently and
then they collected information with regard to legal
representatives and then they have filed present
application. In the present application notices of the
present application are served on legal representatives of
Pralhad. The legal representatives of Pralhad have not
appeared in the present application to contest the
application and it is original plaintiff who is opposing the
application of the appellants.
5) Learned counsel for the plaintiff relied on the
case reported as 2010 AIR SCW 5071 (Budh Ra v. Bansi).
Following observations are made by the Apex Court :-
“Whether non-substitution LRs of the defendants/
respondents would abate the suit appeal in toto or
only qua the deceased defendants/respondents,
depend upon the facts and circumstances of an
individual case. Where each one of the parties has

an independent and distinct right of his own, not
inter-dependent upon one or the other, nor the
parties have conflicting interest inter se, the appeal
may abate only qua the deceased defendant
respondent. However, in case, there is a possibility
that the Court may pass a decree contradictory to
the decree in favour of the deceased party, the
appeal would abate in toto for the simple reason
that the appeal is a continuity of suit and the law
does not permit two contradictory decrees on the
same subject-matter in the same suit. Thus,
whether the judgment/decree passed in the
proceedings vis-a-vis remaining parties would
suffer the vice of being a contradictory or
inconsistent decree is the relevant test. ..... ”
The facts of this case show that the matter was not filed
under the provisions of Hindu Law.
6) One more case reported as 2012 (2) Mh.L.J.
258 (Nathu v. Yashoda) of this Court was cited. Similar
observations are made in this case. There cannot be any
dispute over the proposition made by the Apex Court,
which is quoted above.
7) For the appellant, reliance was placed on the
case reported as (2005) 11 SCC 582 (Mahmud Mian v
Shamsuddin Mian). The Apex Court held in that case that
appeal could not have been abated due to death of a party
as it was partition suit. In the case reported as 2008(6)

Mh.L.J. 715 of this High Court (Govind Vishwanath
Bansode v. Manika Gangaram Bansode). Following
observations are made by this Court at para 15 :-
“15. In the present case, the decree was for
partition to the extent of 1/4th share available to all
the plaintiffs together. So, such 1/4th share could be
internally arranged to be divided by the plaintiffs
within themselves. The plaintiffs claimed their
share as the successors of deceased Vishwanath. It
is well settled that in partition suit, the shares are
always fluctuating. The death caused after the
preliminary decree could not be regarded as an
abatement in respect of the entire suit. In Collector
of 24 Parganas and others vs. Lalith Mohan Mullick
and others, AIR 1988 SC 2121, the Apex Court held
that where some of the respondents died during
pendency of appeal and the estate was sufficiently
represented, the appeal does not abate. Take
example, those plaintiff Nos.3 and 4 would have
died during pendency of the suit and the
substitution was not done, could it be said that the
suit was liable to be dismissed in entirety ? The
answer will be “No”. For, the plaintiffs sued as
successors of deceased Vishwanath and claimed
their share together. Their individual shares were
not defined nor were subject-matter of the
litigation. It is for such reason that, the appeal
before the First Appellate Court also could not be
regarded as abated in entirety.”
8) The issues framed by the trial Court in the
present matter show that there was no issue in respect of
defendant No.2 and defendant No.2 did not appear in the
matter. Defendant No.1 has denied that Pralhad is son of
his father. There was no evidence of Pralhad on record

though in the cross-examination Prabhakar, present
appellant No.1, gave some admissions. Though it can be
said that suit was decided on the basis of these
admissions, in partition suit only the shares are declared.
The shares are required to be actually separated. Even if
we can go with the presumption that the property belongs
to Hindu Joint Family of plaintiff and defendant Nos.1 and
2, the suit was filed by plaintiff and not by Pralhad. The
pleadings show that defendant No.1 was in possession, he
was eldest son and his name was recorded in the revenue
record as the owner. It is contended that defendant No.1
was son from the first wife. Thus, defendant No.1 was
representing the family, if at all the property was
belonging to Joint Hindu Family and he was contesting the
claim of the plaintiff that the plaintiff is the son of father
of defendant No.1. In view of these circumstances, it
cannot be said that the appeal filed by successors of
defendant No.1, present appellant No.1, in District Court
had abated entirely due to death of Pralhad.
9) There was no compliance of provision of Order
XXII Rule 10-A of the Code of Civil Procedure from the

learned counsel appointed by Pralhad. As there was no
information, steps were not taken to bring legal
representatives of Pralhad on record. In any case the
appeal came to be dismissed and the decree of declaration
of share made in favour of Pralhad is not set aside by the
First Appellate Court. The party interested, appellant No.
1, has challenged this decision in the present appeal.
Further the original plaintiff is on the record as
respondent in this appeal and his status is challenged by
the appellant. Thus, it cannot be said that entire appeal
before the District Court had abated and so the present
proceeding needs to be dismissed.
10) Learned counsel for the appellant has placed
reliance on the case reported as 2009 (2) Mh.L.J. 1 (P.B.
Devaswom v. Bhargavi Amma). In this case the Apex
Court has discussed the provisions of Order XXII Rules 9
and 11 of the Code of Civil Procedure Code and Section 5
of the Limitation Act in paragraph 13. Para 13 reads
thus :-
“13. Thus it can safely be concluded that if the
following three conditions exist, the Courts will
usually condone the delay, and set aside the

abatement (even though the period of delay is
considerable and a valuable right might have
accrued to the opposite party – LRs of the deceased
– on account of the abatement):
(i) The respondent had died during the period
when the appeal had been pending
without any hearing dates being fixed;
(ii) Neither the counsel for the deceased
respondent nor the Legal Representatives of
the deceased respondent had reported the
death of the respondent to the Court and
the Court has not given notice of such death
to the appellant;
(iii) The appellant avers that he was unaware of
the death of the respondent and there is
no material to doubt orcontradict his claim.”
11) Reliance was also placed in a case reported as
2013 (2) ALL MR 928 (S.C.) (Sushil K. Chakravarty v. M/s
Tej Properties Pvt. Ltd.) In this case provision of Order
XXII Rule 4(4) of the Code of Civil Procedure is discussed.
The provision of Order XXII Rule 4 CPC is as under :-
“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-
(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.”

12) The Apex Court has held that in view of this
provision the Court can decide to proceed ex parte even
after death of a defendant without Legal Representative of
deceased defendant if parameters of Order XX Rule 4(4)
CPC are complied with. The object behind this provision
needs to be kept in mind and the power given to the Court
can be used in a case like present one.
13) In view of the facts and circumstances of the
present case, this Court hold that the aforesaid provisions
can be used in the present case. Thus, it cannot be said
that the appeal is liable to dismissed.
14) In the result, Civil Application No.12021 of
2012 is allowed. Civil Application No.8010 of 2013 is
dismissed.
Sd/-
(T.V. NALAWADE, J.)

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