Exemption from substitution of L.R.can be granted by court at any time before judgment.

The plaintiffs in O.S. No. 275 of 1977 have filed this Civil Revision Petition challenging the order dated 15-12-1997 made by the learned District Munsif, Tiruvallur in I.A. No. 1196 of 1997. The parties will be referred to in this order by the rank assigned to them in the suit itself for convenience.

2. The plaintiffs filed O.S. No. 275 of 1977 against the defendants for partition and separate possession of their 5/6 shares in 'B' schedule properties, for ascertainment and recovery of past profits, and for future profits from the date of suit till recovery of possession. The second defendant, viz., Sadasivam, after receiving summons in the suit did not appear in Court. Therefore he was set ex parte on 22-10-1977. He died long thereafter in the year 1991. The contesting fourth defendant filed a memo into Court in 15-2-1993 intimating the death of the second defendant. The suit was adjourned from time to time for taking steps, and on 1-6-1993 the suit was dismissed as against second defendant as abated.

3. Since the second defendant did not appear in the suit, did not file written statement, and was set ex parte, the plaintiffs did not take steps to bring his legal representatives on record. As already stated above, the suit was dismissed on 1-6-1993 as against defendant No. 2. The plaintiffs filed I. A. No. 1196/97 under Order 22 Rule 4 (4) read with Section 151 C.P.C. praying to set aside the order passed on 1-6-1993 against second defendant as there was no abatement of the suit as per the provisions of Order 22 Rule 4.

4. Fourth defendant filed counter to the I. A. opposing it, contending that in spite of the memo filed by him intimating the death of the second defendant, the plaintiffs took several adjournments and failed to take steps to bring the legal representatives of second defendant on record; the trial Court was pleased to dismiss the suit against second defendant for non-filing the L. R. Petition in time; hence it was not open to the plaintiffs to file the present I. A. under Order 22 Rule 4(4) read with Section 151 C.P.C.; the said petition was an after-thought, highly belated; and the plaintiffs were only interested in prolonging the proceedings.

5. The Court below after hearing both the parties, dismissed the I.A. No. 1196/97 by the order impugned in this civil revision petition.

6. The learned counsel for the plaintiffs urged that the learned District Munsif failed to see that an application under Order 22 Rule 4 (4) C.P.C. could be filed at any time before pronouncement of the Judgment in the suit, and the Court had wide discretion to exempt the plaintiffs from substituting the legal representatives of second defendant till pronouncement of the Judgment; the trial Court also manifestly erred in dismissing the I. A. on the ground that the plaintiffs had not filed application to bring the legal representatives of the second defendant on record even after several adjournments, and thereby it failed to exercise jurisdiction vested in it; since the second defendant had remained ex parte without even filing written statement there was no obligation on the part of the plaintiffs to implead his legal representatives, and the learned District Munsif acted with material irregularity in not following the decisions of this Court, viz., (i)

"Velappan Pillai v. Parappan Panickar, 1969 AIR(Mad) 309; (ii) Janabai Ammal alias Gunabooshani v. T.A.S. Palani Mudaliar, 1981 AIR(Mad) 62; and (iii) Elisa v. A. Doss.

7. On the other hand the learned counsel for the contesting respondent No. 1 argued supporting the order impugned in this revision petition. He submitted that the suit was dismissed as against second defendant as early as on 1-6-1993 when steps were not taken by the plaintiffs to bring his legal representatives on record in spite of the memo dated 15-2-1993 filed in the Court intimating the death of the second defendant; hence the Court below rightly dismissed the application filed under Order 22 Rule 4 (4) read wi