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1997 Supreme(Pat) 811

SACHCHIDANAND JHA
Ganga Singh College – Appellant
Versus
Bharati Bidya Mandir – Respondent


Judgement Key Points

Certainly. Based on the provided legal document, here are the key points summarized:

  1. When a defendant dies either shortly after the suit is filed or before the suit is instituted, issuing summons to the deceased is considered an empty formality. No presumption of deemed service can be made in such cases, and the court cannot grant exemption from substitution of the legal representative under Order 22, Rule 4(4) of the Civil Procedure Code (!) (!) .

  2. The primary condition for granting exemption under Order 22, Rule 4(4) is the valid service of summons. If the defendant has died before the suit's institution or shortly thereafter, there is no opportunity for the defendant to file a written statement or contest the suit, which means the court cannot issue an exemption order (!) (!) .

  3. The rule regarding exemption from substitution aims to prevent unnecessary delays and to allow the court to pronounce judgments against defendants who fail to participate in the proceedings, even after their death. However, this is only applicable when there has been valid service of summons, which is absent if the defendant was already deceased at the time of service (!) .

  4. The legal fiction created by the exemption rule permits the court to pass a decree against a deceased defendant who was non-contesting, but only if the conditions of valid service are satisfied. Without valid service, the court cannot proceed with exemption or pass a decree against the deceased (!) .

  5. In the case discussed, the court emphasized that if the defendant dies before the institution of the suit or immediately thereafter, the issue of summons becomes a formality, and no presumption of deemed service can be drawn unless there is valid service. Therefore, the court cannot grant exemption in such circumstances (!) .

  6. The court acknowledged that even if the exemption is not granted, the suit for specific performance can still proceed against the purchaser, provided the purchaser has a direct interest. The decree can be passed against the purchaser without necessarily involving the deceased vendor or their heirs, especially when the contract is enforceable against the purchaser (!) (!) (!) (!) .

  7. Ultimately, the revision petition was dismissed because the conditions for exemption were not met, and the court reaffirmed that valid service is a prerequisite for granting exemption or passing judgments against deceased defendants (!) (!) .

Please let me know if you need further elaboration or assistance with specific legal questions.


Judgment

1. This civil revision by the defendant is directed against an order exempting the plaintiff-opposite party from the necessity of substituting the legal representative of defendant No. 1 Smt. Suchitra Dutta in terms of Rule 4(4) of Order 22 of the Code of Civil Procedure.

2. The plaintiffs filed suit for specific performance of contract for sale of the property, described in Schedule I of the plaint in favour of plaintiff No. 1-Bharti Bidya Mandir, Chapra. There cases, shortly stated, is that plaintiff No. 1 was the tenant of late Hem Chandra Mitra. After his death, his wife Smt. Suchitra Dutta (defendant No. 1) started realising rent. In the year 1966 the petitioner was allowed to run its Law faculty during evening hours with the consent of the plaintiffs, but the petitioner was never recognised as tenant nor any rent was paid by the petitioner to the plaintiffs or to the landlord. Plaintiff N o. 1 had entered into oral agreement for the sale of the property with Rabindra Nath Dutta in the year 1983 for sum of Rs. 1,10,000.00 out of which Rs. 10,000.00 was paid in advance. However, the petitioner and opposite party No. 13, the University of Bihar (now known as Babasaheb Bh











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