2003 2 ALD(SC) 89 ; 2003 1 AllCJ 728 ; 2003 2 AWC 1664 ; 2003 1 BC 555 ; 2003 3 CHN(SC) 87 ; 2003 1 CTC 184 ; 2003 102 DLT 111 ; 2003 1 DMC 192 ; 2003 1 DNJ 110 ; 2003 2 ICC 276 ; 2003 2 JCR(SC) 70 ; 2002 10 JT 569 ; 2003 21 LCD 780 ; 2004 22 LCD 626 ; 2003 1 PLJ 51 ; 2003 1 RCR(Civ) 465 ; 2002 9 Scale 727 ; 2003 1 SCC 476 ; 2003 1 Supreme 444 ; 2002 0 Supreme(SC) 1289 ; 2003 1 WLC 491
2003(1) Supreme 444
SUPREME COURT OF INDIA
(From Delhi High Court)
Syed Shah Mohd. Quadri, Ashok Bhan & S.B. Sinha, JJ.
Zahirul Islam -Appellant
versus
Mohd. Usman & Ors. -Respondents
Civil Appeal No. 8631 of 2002
(Arising out of SLP (C) No. 11288 of 2000)
Decided on 20-12-2002
Counsel for the Parties :
For the Appellant : Nafis A. Siddiqui, Advocate.
For the Respondents : Ms. Binu Tamta, Ms. V. Deepa for Ms. Indu Malhotra and Ms. Pratibha Jain (N.P.), Advocates.
IMPORTANT POINT
The appellant was entitled to be brought on record as LR of defendant 2 in the suit against deceased defendant 2 who had failed to file written statement as no permission as contemplated under Order 22 Rule 4(4) was obtained by the plaintiff obtained from the Court exempting the plaintiff from bringing LR of deceased defendant 2 on record.
Civil Procedure Code, 1908-Order 22 Rule 4(4)-Procedure in case of death of one of several defendants-Defendant 2 dying-His LR (the appellant) not substituted-No permission obtained for exemption to substitute-Appellant sought stay of execution of the decree in proceedings under Order 9 Rule 13 ref=act:10444>CPC-Dismissed by High Court on ground that the deceased defendant 2 had not chosen to appear before the trial Court and the matter proceeded ex-parte during his life time and plaintiff was exempted to bring on record his LR-Whether correct? (No as no permission as contemplated under Order 22 Rule 4(4) was obtained by plaintiff)-Appeal allowed.
Held : A perusal of sub-rule (4), extracted above, shows that a plaintiff may be exempted from the necessity of substituting the legal representatives of a defendant who has failed to file a written statement or who, having filed it, failed to appear and contest the suit at the hearing and that, in such a case, the judgment may be pronounced against the said defendant notwithstanding the death of such defendant and it shall have the same force and effect as if the judgment has been pronounced before the death took place. In the instant case, it is stated by the learned counsel appearing for the appellant that no permission contemplated under sub-rule (4) was obtained from the court exempting the plaintiff from bringing on record the legal representative of deceased Defendant No. 2. From the order under challenge also, it does not appear that any such permission was sought or granted by the Court. In this view of the matter, the order under challenge cannot be sustained. It is, accordingly, set aside. The appellant was, therefore, entitled to be brought on record in the suit. The civil appeal is, accordingly, allowed. (Paras 6, 7 and 8)
Act Referred :CIVIL PROCEDURE CODE : O.22 R.4(4)
.
ORDER
Despite service of notice, none appears for Respondent No. 1.
2. Leave is granted.
3. This appeal is filed against the order of the High Court at Delhi in Civil Revision Petition No. 25 of 2000 made on January 11, 2000.
4. The impugned order was passed by the High Court on the application of the appellant-legal representative of deceased Defendant No. 2 who is said to have died on 1st February, 1995. He sought stay of execution of the decree in proceedings under Order IX Rule 13 of the Code of Civil Procedure, 1908. That application was dismissed. He approached the High Court by filing civil revision petition. The High Court dismissed the revision on the ground that the deceased Defendant No. 2 had not chosen to appear before the trial Court and the matter proceeded ex-parte during his lifetime. The order of the High Court is under challenge in this appeal.
5. It would be necessary to refer to Order XXII Rule 4 of the Code of Civil Procedure, 1908, insofar as it is relevant, which reads as under :
"4. Procedure in case of death of one of several defendants or of sole defendants.-
(1) to (3) xxx xxx xxx
(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 the death took place."
6. A perusal of sub-rule (4), extracted above, shows that a plaintiff may be exempted from the necessity of substituting the legal representatives of a defendant who has failed to file a written statement or who, having filed it, failed to appear and contest the suit at the hearing and that, in such a case, the judgment may be pronounced agai
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