The main legal point established in the judgment is the discretion of the court to dispense with the necessity of substituting legal representatives of a defendant under Order XXII Rule 4 (4) of CPC, and the requirement to obtain exemption before the pronouncement of judgment.

JUDGMENT :

Heard learned counsel for the parties.

2. This Civil Miscellaneous application is filed under Article 227 of the Constitution of India against the Order dated 16.10.2019 passed by learned Sub-Judge XVII in Title Suit No. 161 of 1998 whereby the learned trial Court dismissed the application filed by the petitioner/plaintiff to substitute the legal representatives of the defendant no. 1 who failed to file the written statement and also failed to appear and contest the suit.

3. The brief facts of this case are that the original petitioner Mahendra Singh (now represented through legal heirs on his death) is the plaintiff who filed a Title Suit bearing Title Suit No. 161 of 1998 for declaration of title and also prays that the sale deed executed in respect of the suit land may be declared illegal and void and the same is not binding upon the plaintiff. Despite service of notice defendants did not appear and the suit was proceeded ex parte against defendant nos. 1, 2, 3, and 4. However, defendant nos. 3 and 4 appeared and filed their written statement. The ex parte order against them was recalled. Defendant no. 1 despite service of notice through all modes neither appeared nor filed her written statement. The plaintiff came to know about the death of defendant no. 1 on the basis of the application dated 16.01.2019 filed by the defendant and affidavit of Kamleshwari Devi dated 28.01.2019 filed by defendant no. 2. On knowing the same an application under Order 22 Rule 4 (4) of the Code of Civil Procedure was filed on behalf of the plaintiff for exempting the plaintiff from substituting the legal representatives of defendant no. 1 and also prayed to delete the name of defendant no. 1 from the array of the parties. However, the trial Court dismissed the said application by observing that against the defendant no. 1 ex parte proceeding has been initiated, so proceedings under Order XXII Rule 4 (4) CPC cannot be initiated against the defendant no. 1 and the same is not sustainable in the eye of law.

4. Learned counsel for the petitioners submits that it is well settled that Order XXII Rule 4 (4) CPC vests power in the Court to consider the matter of exemption from necessity of substituting legal representatives of defendants who failed to file written statement or who having filed it, failed to appear and contest the suit at the hearing or at any stage of the suit before the pronouncement of the judgment. He has further submitted that the learned trial Court failed to appreciate the object of Order XXII Rule 4 (4) of CPC as the whole object of it is to avoid the unnecessary delay. Further, learned counsel for the petitioners submits that the impugned order is liable to be set aside by this Court in its supervisory jurisdiction.

5. On the other hand, learned counsel for the respondents has submitted that defendant no. 1 died in the year 2005 but no substitution petition has been filed. Accordingly, after expiry of the limitation period, the whole suit became abated. He has further submitted that despite the full knowledge about the death of defendant no. 1, the plaintiff failed to file the substitution petition. Accordingly, the Court below has rightly rejected the application of the petitioners which requires no interference by this Court.

6. The object of the sub-rule 4 of Rule 4 of Order XXII CPC is to avoid unnecessary delay. It confers the discretion on the Court to dispense with the necessity of substituting legal representatives of a defendant (i) who has failed to file a written statement or (ii) who having filed it has failed to appear and contest the suit. The Judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and have the same force and effect as if it has been pronounced before death took place.

7. The Hon’ble Supreme Court in T. Gnanvel Vs. T.S. Kanagraj & Anr. (A.I.R. 2009 SC 2367) explained to the effect that the exemption under Order 22 Rule 4 (4) of th