( 1 ) THIS Chamber Summons is taken out by the plaintiff seeking exemption, under Order 22 Rule 4 (4) of the Code of Civil Procedure (for short the CPC), from substituting or bringing on record the legal representatives of the deceased defendant No. 4 and also for an amendment of the plaint to change the name of the plaintiff.

( 2 ) AS regards the prayer for amendment of name the plaintiff has pleaded that the name of the plaintiff company was changed subsequent to the filing of the suit. A copy of the fresh certificate of incorporation issued by the Deputy registrar of the Companies showing the amendment in the name is annexed to the Chamber Summons. In the circumstances I see no reason for not allowing the amendment of the plaint to change the name of the plaintiff.

( 3 ) AS regards the prayer for exemption from bringing on record the legal representatives of the deceased defendant No. 4, it may be noted that the defendant No. 4 died prior to 2nd September, 2005. On two occasions. e. , on 2nd september and 16th December, 2005 time was sought by the plaintiff for bringing the legal representative/s of the deceased defendant No. 4 on record. As no steps were taken even thereafter for bringing the legal representatives of the deceased defendant No. 4, by an order dated 13th December, 2006 this Court dismissed the suit as abated as against the defendant No. 4. Now, by this chamber Summons, the plaintiff seeks an order of exemption from bringing the heirs of the deceased defendant No. 4 on record.

( 4 ) COUNSEL for the plaintiff submitted that an application for exemption for bringing on record the heirs of the defendant, who has not filed a written statement, can be at any time even after an order of abatement is passed by the court. In support of his submission he relied upon the decision of a Division bench of the Patna High Court in Md. S. Imam vs. Rai Bharat Kumar, reported in air 2000 Patna 321 and a decision of a Single Judge of the Allahabad High court in Mohammad Mustaqeem and ors. vs. Aftab Ahmad, reported in AIR 1983 allahabad 368. Counsel for the plaintiff also pointed out that the original defendant No. 4, though served, had not appeared and had not filed a written statement. He, therefore, submitted that under the amended sub-rule (4) of Rule 4 of Order 22 of Civil Procedure Code this was a fit case for granting exemption for bringing the heirs of the deceased defendant No. 4 on record.

( 5 ) RULE 4 (1) of Order 22 of the Civil Procedure Code says that where one of two or more defendants dies and the right to sue does not survive against the surviving 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 representatives of the deceased defendant to be made a party and shall proceed with the suit. Article 121 of the Limitation Act prescribes a period of 90 days for making an application for bringing on record the legal representatives of the deceased on record. In case the plaintiff fails to bring the legal representatives of the deceased defendant on record within the period prescribed, the suit against the deceased defendant stands abated although the abatement can be set aside on an application made within 60 days of such abatement (Article 121 of the Limitation Act ). Prior to the year 1976 there was no provision in the Civil Procedure Code for exempting the plaintiff of the requirement of bringing on record the legal representatives of the deceased defendant. However by Act No. 104 of 1976, sub-rules (4) and (5) were added in rule 4 of Order 22 of the Civil Procedure Code.

( 6 ) SUB-RULE (4) of Rule 4 of Order 22 Civil Procedure Code reads thus: (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

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