The court's decision was based on the interpretation of Order 22 Rule 4(4) of the Code of Civil Procedure, which requires the presence of specific conditions for exercising discretion in exempting the plaintiff from substituting the heirs and legal representatives of a deceased defendant.

B. Bhattacharya, J : This revisional application is at the instance of a plaintiff in a suit for eviction inter alia on the ground of sub-letting and is directed against Order No. 89 dated February 23, 2001, passed by the learned Judge, 5th Bench, Presidency Small Causes Court, Calcutta in Ejectment Suit No. 1001 of 2000 thereby rejecting the prayer of the present petitioner under Order 22 Rule 4(4) of the Code of Civil Procedure and adding the heirs of the deceased defendant No.3 as party defendants by exercising power under Order 1 Rule 10 of the Code.

In the suit, the plaintiff petitioner added defendant No.3, the alleged sub-tenant in addition to the tenant who is defendant No. 1.

2. There is no dispute that defendant No.3 died on July 1993 but within the period of limitation prescribed by law, no application for substitution was filed.

Subsequently, long thereafter, the petitioner came up with an application under Order 22 Rule 4(4) of the Code for exempting the plaintiff from the necessity of substituting the heirs and legal representatives of deceased defendant No.3.

3. By the order impugned herein, the learned Trial Judge although has rejected such prayer but has added the heirs of the deceased defendant No.3 in the suit as additional defendants.

4. Being dissatisfied, the plaintiff has come up with the instant application.

After hearing Mr. Manna learned Advocate appearing in support of the application and Mr. Kar Gupta learned Advocate appearing on behalf of the heirs of the deceased respondent No.3. I find that in the fact of the present case, the learned Trial Judge rightly rejected the prayer of the petitioner under Order 22 Rule 4(4) of the Code. It appears from the record which has been called for by this Court that even on February 19, 1993, the learned Trial Judge directed the plaintiff to take step for service of summons upon the defendant Nos. 2-4 and there is no order recording acceptance of service against defendant No.3 before the death of such person. That being the position, it cannot be said that the defendant No.3, inspite of service neither appeared nor did he file any written statement. Therefore, conditions for exercising discretion under Order 22 Rule 4(4) of the Code, are absent in the present case.

5. Mr. Manna learned Advocate appearing on behalf of the petitioner, however, vehemently contended that summon was sent to defendant No.3 earlier but it appears from the registered cover that the same was returned as not claimed.

6. In my view, in the absence of any order recording acceptance of such service as good service, it cannot be said that the deceased defendant No.3 failed to file written statement or contest the suit before his death. The suit did not reach the peremptory hearing stage at the time of death of defendant No. 3. Thus, the learned Trial Judge rightly refused to exercise discretion under Order 22 Rule 4(4) of the Code. Since the heirs of the deceased defendant have already made parties by the order impugned herein; the plaintiff cannot prejudiced in any way. It is needless to mention that the order impugned has not been challenged by the heirs of the deceased defendant No.3. I thus, find no substance in this revisional application.

7. Since the suit is pending from 1988, the learned Trial Judge is directed to dispose of the suit as expeditiously as possible. The heirs of the deceased defendant are directed to file written statement positively within three weeks from date. Since Mr. Kar Gupta has entered appearance on behalf of all the heirs of deceased defendant No.3 with Mr. Somnath De, the learned Advocate for the petitioner is directed to serve the copy of the plaint upon Mr. De positively by, tomorrow. On service of such copy of the plaint, the service of summon is waived by the heirs of the deceased defendant No.3.

The revisional application is thus disposed of with the aforesaid observations.

There will be no order as to costs.

Xerox certified copy of this order, if applied f