The Court can exempt the plaintiff from the necessity of substituting the legal representatives of a non-contesting defendant notwithstanding the abatement which has automatically set in. The discretion vesting in the Court under sub-rule (4) of O. 22, R. 4 can be exercised by the Court at any stage before the judgment is delivered and the discretion is not fettered by the circumstances of abatement of the suit.

Headnote:
CIVIL PROCEDURE CODE - O. 22, R. 4(4) - EXEMPTION FROM SUBSTITUTION OF LEGAL REPRESENTATIVES - NON-CONTESTING DEFENDANT - SCOPE AND APPLICABILITY - COURT'S DISCRETION - STAGE OF EXERCISE - ABATEMENT OF SUIT - EFFECT.
Fact of the Case:

Plaintiff filed a suit for partition of movable assets owned by his deceased mother and asked for division thereof. He also required defendants 1 and 2 to render account of the joint accounts of the mother with defendant No. 8 as also joint locker of the deceased with defendant No. 9. Defendant No. 5 expired on 20th Dec., 1977, but no application was moved by the plaintiff within time to bring her legal representatives on the record. Plaintiff moved an application under O. 22, Rr. 2 and 4 read with S. 151 of the Code for permission to bring the legal representatives, viz., two sons, two daughters and husband of the deceased defendant No. 5 on the record. Alternatively, he prayed for exemption from the necessity of substituting the legal representatives of defendant No. 5 under sub-rule (4) of O. 22, R. 4 on the ground that she had failed to appear and contest the suit at the subsequent hearings even though she did file written statements dated 30th Jan., 1962 and 16th Feb., 1963, jointly with defendant No. 6 controverting the claim of the plaintiff.
Finding of the Court:

The Court held that the amendment of O. 22, R. 4(4) by the Code of Civil Procedure (Amendment) Act (104 of 1976) has liberalised the provisions contained in R. 4 of O. 22 to a very large extent in the case of dormant defendants and sub-rule (4) is intended to apply to all such cases where even the deemed abatement has taken place provided, of course the other conditions laid in sub-rule (4) are duly satisfied. The Court further held that the discretion vesting in the Court under sub-rule (4) can be exercised by the Court at any stage before the judgment is delivered and the discretion is not fettered by the circumstances of abatement of the suit. The Court also held that the expression "hearing" in the context of sub-rule (4) will connote hearing of the suit as a whole and not any particular date of hearing subsequent to the filing of the written statement.
Issues: 1. Whether the Court can exempt the plaintiff from the necessity of substituting the legal representatives of a non-contesting defendant notwithstanding the abatement which has automatically set in? 2. Whether the discretion given to the Court to invoke the provisions of sub-rule (4) of O. 22, R. 4 can be exercised once abatement takes place? 3. Whether the exemption from the necessity of substituting legal representatives must be made before the abatement sets in? 4. Whether the Court can permit exemption even after the abatement has set in?
Ratio Decidendi: 1. The Court held that the amendment of O. 22, R. 4(4) by the Code of Civil Procedure (Amendment) Act (104 of 1976) has liberalised the provisions contained in R. 4 of O. 22 to a very large extent in the case of dormant defendants and sub-rule (4) is intended to apply to all such cases where even the deemed abatement has taken place provided, of course the other conditions laid in sub-rule (4) are duly satisfied. 2. The Court held that the discretion vesting in the Court under sub-rule (4) can be exercised by the Court at any stage before the judgment is delivered and the discretion is not fettered by the circumstances of abatement of the suit. 3. The Court held that the exemption from the necessity of substituting legal representatives must not necessarily be made before the abatement sets in. 4. The Court held that the Court can permit exemption even after the abatement has set in.
Final Decision: The Court allowed the application filed by the plaintiff under O. 22, Rr. 2 and 4 read with S. 151 of the Code for permission to bring the legal representatives of the deceased defendant No. 5 on the record and exempted the plaintiff from the necessity of substituting the legal representatives of the deceased defendant.

( 1 ) THE facts leading to the above mentioned application succinctly are that Col. M. L. Puri, who was father of the plaintiff-Sh. Yog Raj Puri, defendants 1, 2, 5 and 6, namely, Lt. Col. Yogishwar Raj Puri, Sh. Yugal Raj Pri, Smt. Laila Devi Dewan and Smt. Primla Devi Dewan and was grandfather of defendants 3 and 4, who are minor children of Col. Yadav Raj Puri and grand maternal father of Smt. Padma Devi, who is daughter of Smt. Sushila Devi, deceased daughter of Col. M. L. Puri, died on 24th April, 1949, leaving behind his widow Smt. Chanan Devi and his sons and daughters mentioned above as his legal heirs. Col. Puri owned a large number of stocks and shares and other securities and was operating several accounts with various banks, some of the accounts being jointly in his name and his wife Smt. Chanan Devi or one or other of his sons. The accounts which Col. Puri had in the joint names of himself and one or other on his sons/wife were payable to "either or surviver". On the death of Col. Puri the securities and shares held in his personal account as also in his account jointly with his wife Smt. Chanan Devi were transferred in the name of his wife by the bank concerned viz. Allahabad Bank Limited defendant No. 8. Smt. Chanan Devi died on 22nd Sep. , 1961, leaving behind her sons and daughters etc. as mentioned above as her heirs. She also had a locker with Punjab National Bank defendant No. 9 which was in the joint name of herself and defendant No. 1. Further she had some account with defendant No. 8 in her personal name as well as in the joint names of herself and defendant No. 1/herself and defendant No. 2.

( 2 ) ON 16th Oct. , 1961, the plaintiff instituted this suit in the Court of Senior Sub-Judge, Delhi, which was registered as Suit No. 460/61. He claimed l/7th share in the moveable assets owned by his deceased mother and asked for partition thereof. He also required defendants 1 and 2 to render account of the joint accounts of the mother with defendant No. 8 as also joint locker of the deceased with defendant No. 9. Thus, he claimed a decree for his share in the shares, securities and moneys belonging to his mother with costs. It was, inter alia, averred that taking advantage of their joint names in the aforesaid accounts and in the locker, defendants 1 and 2 had illegally and without the knowledge of the plaintiff had misused/ misappropriated the same by obtaining signatures of their mother on blank cheques etc. However, he sought amendment of the plaint which was allowed vide order dated 8th Jan. , 1963, subject to payment of costs and he filed his first amended plaint dated 18th Jan. , 1963 on 22nd Jan. , 1963. In the amended plaint the plaintiff took up the stand that Col. Puri used to operate and maintain accounts in his own name and in joint names of himself and one or other of his sons and his wife. However, the proprietary rights in the moneys and the securities held in all such accounts were that of Col. Puri only and the persons as joint operators of the accounts had no ownership rights therein. Thus, on the death of Col. Puri the same devolved upon the sons and widow of Col. Puri in equal shares. He claimed that be had 8/35th share in the assets left by his father Col. Puri and his mother Smt. Chanan Devi and asked for division of the same. Still later he moved yet another application sometime in 1968 and the same was allowed vide order dated 23rd March, 1968 and he put in second amended plaint dated 23rd March, 1968, claiming l/4th share in the shares, securities and other assets of his deceased father. While re-stating that on the death of Col. Puri his assets including the shares, securities and the accounts devolved upon his sons and widow in equal shares and reiterating that Smt. Chanan Devi died on 22nd Sep. , 1961, leaving behind the plaintiff and defendants 1 to 7 as her legal heirs, he asserted that he had l/4th share in all those assets, shares, securities and moneys etc. of Col. M. L. Puri an

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Judicial Analysis

1981 Supreme(Del) 218

High Court Of DelhiYOG RAJ PURI - AppellantVersusYOGESHWAR RAJ PURI - RespondentInterim Application 3917 of 1979Decided On : 07/21/1981

Cases Referred (5)

Judicial Analysis

High Court Of Delhi
YOG RAJ PURI - Appellant
Versus
YOGESHWAR RAJ PURI - Respondent
Interim Application 3917 of 1979
Decided On : 07/21/1981