The main legal point established in the judgment is the interpretation and application of Order XXII, Rule 4(4) of the Code of Civil Procedure, which allows the court to exempt the plaintiff from the necessity of substituting the legal representatives of a deceased defendant who has failed to file a written statement or contest the suit.

1. This revision application is directed against the order dated 18-12-1985, passed by the Subordinate Judge, Ist, Patna, in Title Suit No. 26 of 1982, by which he has rejected the application filed by the plaintiff-petitioner under Order XXII, Rule 4(4) of the Code of Civil Procedure (hereinafter referred to as the Code), claiming exemption from the necessity of substituting the legal representatives of deceased defendant No. 3, who even though appeared in the suit but neither filed any written statement nor did she participate in the proceeding of the suit.

2. The facts necessary for disposal of the present application are that the plaintiff filed the aforesaid suit for declaration of title as well as for a declaration that the sale deed executed by defendants No. 3 and 4 in favour of defendants No. 1 and 2 was illegal and inoperative as well as for recovery of possession.

3. The plaintiffs case is that the premises in question, situated in S.P. Verma Road in the town of Patna, was the self-acquired property of her husband, namely, late Akbar Imam. He gifted the same to her on 20-11-1966 and on the basis of the said gift, the name of the petitioner was mutated in the records of the Patna Municipal Corporation and other records. Her husband had given in writing in the Corporation accepting the gift in favour of the petitioner. Thereafter, she became an absolute owner and came in possession of the suit premises. Her husband fell seriously ill and ultimately he died in England in the year 1967, leaving behind the petitioner as his widow, mother Ashma Zafar Imam (defendant No. 3) and a daughter from his divorced wife Smt. Tahmina Parwani. After the death of her husband, the petitioner for some time remained in London and the property was being looked after by the persons authorised by her. During her absence, the mother (defendant No. 3) got her name mutated in the Corporation and she along with defendant No. 4 sold the suit property on 28-4-1970 to Shri Rai Bharat Kudmar and his wife Smt. Omi Devi (defendants No. 1 and 2).

4. After filing of the suit, summonses were sent to defendants No. 1 to 4. Defendant No. 3 appeared in the suit but, thereafter, she did not take any step, including the filing of the written statement and on 19-9-1984 she died. The other defendants, including daughter of late Akbar Imam, filed written statements and contested the suit. As defendant No. 3 did not file any written statement after appearance in the Court, the plaintiff-petitioner filed a petition on 28-1-1985 under Order XXII, Rule 4(4) of the CPC before the Court below for exempting her from the necessity of filing a substitution petition for substituting legal representatives of defendant No. 3. The said petition has been rejected by the learned Subordinate Judge by the impugned order on the ground that there is no material on the record to show as to in what circumstance defendant No. 3 could not file any written statement or contest the suit and the said fact would be brought on the record only by the legal heirs of defendant No. 3 and as such the substitution of the heirs of deceased defendant No. 3 was necessary for the decision of the case.

5. The matter was placed before the learned single Judge for hearing and he, by order dated 19-11-1986, referred the following question to be decided by a Division Bench :

"Whether a Court can proceed with a suit without substitution as provided under Order XXII, Rule 4(4) of the Code of Civil Procedure in a case where the defendant dies before the filing of the written statement."

6. Learned counsel for the petitioner raised two contentions, firstly that as defendant No. 3, after her appearance, neither filed a written statement nor did she contest the suit, the provision of Order XXII, Rule 4(4) of the CPC is attracted in the facts of this case and the Court below has wrongly rejected the prayer for exemption on the ground mentioned in the impugned order and the Court below should have allow