Indira Banerjee, J.

1. This appeal is against a judgment and order dated 26.4.2016 passed by the learned Single Judge, in the application being I.A. 261 of 2016, under Order XXII Rule 4 (wrongly mentioned as Order XXII Rule 3 of the Civil Procedure Code for substitution of the Appellants as Defendants in the suit being C.S. (O.S.) 2017 of 2015 filed by the Respondent No.1, in place of the defendant No.4, who is dead.

2. By the impugned order, the learned Single Judge was pleased to convert the application filed by the Respondent No.1 under Order XXII Rule 3 as an application under Order VI Rule 17 for amendment of the plaint, allow the application and implead the Appellants as Defendants in the suit.

3. The Appellants filed the suit being C.S. (O.S.) 2017 of 2015 against M/s. Rockman Projects Ltd. impleaded Defendant No.1 and its directors, impleaded Defendant Nos. 2 to 5, for a decree of Rs.10,25,000,00/- (Rupees Ten Crore twenty five Lakhs) and other consequential reliefs. Mr. D. K. Jain, impleaded as Defendant No. 4, was already dead, when the suit was filed. The Defendant No.4 died on 13.03.2015. The suit was filed on or about 30.06.2015.

4. On or about 11.12.2015, the Plaintiff filed an application being IA No.261/2016, under Order XXII Rule 4 (wrongly stated to be under Order XII Rule 3) for substitution of the Appellants, being the heirs of the Defendant No.4 in place of the Defendant No.4. After the Appellants were served with notice of the application being I.A. 261 of 2016 under Order XXII Rule 4, the Appellants entered appearance through their lawyer Shri Ankit Jain on 5.4.2016, being the date mentioned in the notice for appearance.

5. On 5.4.2016, the learned Joint Registrar granted two weeks’ time to the Appellants time to file their reply to the said application. The Appellants contend that the Appellants were only served with a copy of the application. No copy of the plaint was served on the Appellants.

6. In course of hearing before the learned Joint Registrar, the learned lawyer engaged on behalf of the Appellants requested the learned lawyer appearing on behalf of the plaintiff to furnish him with a complete copy of the plaint.

7. According to the Appellants, the Appellants were to file their reply within 26.4.2016, but could not do so, since the Appellants had not been served with a copy of the plaint, complete with the annexures thereto.

8. The records reveal that the application being I.A. 261 of 2016 was due to be listed before the learned Joint Registrar on 15.07.2016. However, on 26.4.2016 the suit was listed before the learned Single Bench pursuant to the directions of the learned Joint Registrar.

9. Order XXII Rule 4 of the Civil Procedure Code provides as follows:-

“4. Procedure in case of death of one of several defendants or of sole defendant.-

(1) Where one of the two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.

(4) The court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.

(5) Where,-

“(a) the plaintiff was ig