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PATNA HIGH COURT
Sachchidanand Jha, J.
Ganga Singh College
Versus
Bharati Bidya Mandir
Civil Revision No. 1798 of 1994 ;
Decided On : NOVEMBER 18, 1997
CIVIL PROCEDURE CODE - ORDER 22, RULE 4(4) - EXEMPTION FROM SUBSTITUTION OF LEGAL REPRESENTATIVE - CONDITIONS PRECEDENT - VALID SERVICE OF SUMMONS - DEATH OF DEFENDANT BEFORE INSTITUTION OF SUIT OR SOON THEREAFTER - NO OCCASION FOR FILING WRITTEN STATEMENT OR CONTESTING SUIT - COURT CANNOT PASS ORDER OF EXEMPTION.
Fact of the Case:
Plaintiffs filed a suit for specific performance of contract for sale of property. Defendant No. 1, the landlord, died before the suit was instituted. The petitioner, who claimed to be the purchaser of the property under a registered sale deed, objected to the plaintiffs' application for exemption from the necessity of substituting the legal representative of defendant No. 1.
Finding of the Court:
The court held that where a defendant dies soon after the institution of the suit or is already dead on the date the suit is instituted, issue of summons is an empty formality and no presumption of deemed service can be drawn. In such a situation, the court cannot pass any order of exemption.
Issues: Whether the court can grant exemption from the necessity of substituting the legal representative of a deceased defendant under Order 22, Rule 4(4) of the Code of Civil Procedure where the defendant died before the institution of the suit or soon thereafter.
Ratio Decidendi: The court held that the condition precedent for passing an order of exemption under Order 22, Rule 4(4) is valid service of summons. Where the defendant dies before the institution of the suit or soon thereafter, there is no occasion for the defendant to file a written statement or contest the suit. In such a situation, the court cannot pass any order of exemption.
Final Decision: The court dismissed the revision petition filed by the petitioner.
Certainly. Based on the provided legal document, here are the key points summarized:
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 (!) (!) .
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 (!) (!) .
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 (!) .
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 (!) .
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 (!) .
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 (!) (!) (!) (!) .
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.
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 Bhimrao Ambedkar Bihar University) got a forged sale deed dated 23-8-1985 manufactured in their favour. In the circumstances, the suit was filed for decree of specific performance of contract.
3. The petitioner in its written statement filed on 10-12-1993 stated that the aforesaid sale deed dated 23-8-85 was a genuine document executed by the landlord for consideration of rupees 3 lacs. It also took the stand that defendant No. 1 Smt. Suchitra Dutta had died more than three years ago without any issue, leaving behind her husbands sister Smt. Dalia Bose as the only heir, who was a necessary party in the suit. On account of non-substitution, the suit must be held to have abated long ago.
4. On 1-9-1994 an application was filed on behalf of the plaintiffs to exempt them from the necessity of substituting the legal representative of defendant No. 1 under Order 22 , Rule 4(4) of the Code on the ground that despite valid service of summons defendants No. 1 did not file her written statement nor even appeared, and, therefore, should be deemed a non-contesting defendant in the suit. The petitioner objected to the prayer by filing rejoinder. By the impugned order, as indicated at the outset, the plaintiffs prayer for exemption has been allowed.
5. Mr. Shashi Shekhar Dwivedi, learned counsel for the petitioner, submitted that the occasion for granting exemption from necessity of substituting of legal representative or any defendant arises only after service of summons. It is only after the summons is validly served that it can be said that the defendant has failed to file written statement or, having filed it, has failed to appear and contest that suit at the hearing, which is condition precedent for passing order of exemption. In the present case, the summons by registered post was issued to defendant No. 1 on 16-7-1993, but defendant No. 1 being dead, there was no question of any service including deemed service under Order 5, Rule 19A(2) of the Code. Therefore, there was no question of her filing any written statement so as to attract the provisions of Order 22, Rule 4(4). It was submitted that specific statement about the death of defendant No. 1 had been made in para 9 of the written statement but no step was taken to substitute the heirs. The application for exemption was filed on 1-9-1994 only after the petitioner filed an application to dismiss the suit on the ground of abatement on 31-8-1994.
6. Rule 4 of Order 22 provides that where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or the sole defendant or sole surviving defendant dies and the right to sue survives, the Court on application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party. Sub-r
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