IMPORTANT POINT
The court established that under Order XXII Rule 4(4) of the CPC, a plaintiff may be exempted from substituting legal representatives of a deceased defendant who failed to participate in the proceedings, allowing for judgment to be pronounced against the deceased.

ORDER :

Prayer: Civil Revision Petition filed under Article 227 of Constitution of India, praying to set aside the fair and decretal orders dated 30.06.2023 passed in I.A.No. 2 of 2022 in O.S.No. 34 of 2017 on the file of the Additional District Munsif Court, Tittagudi.

1. The Civil Revision Petition is filed challenging the order passed by the Trial Court refusing to grant exemption to the petitioner/plaintiff from bringing the legal representatives of the deceased 5th defendant namely Manivasagam on record. The preamble portion of impugned order would indicate respondents 1 to 3 did not object the petitioner's prayer by filing counter. The 4th respondent remained exparte. Hence, having regard to the relief prayed for, notice to respondents 1 to 4 is not necessary.

2. The petitioner herein filed a suit for declaration of title and recovery of possession. The 5th defendant was set exparte on 01.02.2018. Thereafter, pending suit, the 5th defendant namely Manivasagam died. The petitioner herein filed application in I.A.No. 2 of 2022 seeking exemption from bringing the legal representatives of the deceased 5th defendant on record under Order XXII Rule 4(4) of CPC. The said application was dismissed by the Trial Court. Aggrieved by the same, the petitioner is before this Court.

3. The learned counsel for the petitioner by taking this Court to Order XXII Rule 4(4) of CPC submitted that when the 5th defendant failed to file written statement and remained exparte, there is no necessity to bring his legal representatives on record and the Court has got ample power to grant exemption to the plaintiff from bringing the legal representatives of 5th defendant on record. In support of his contentions, the learned counsel relied on the judgment of this Court reported in 1998 SCC Online Madras 155.

4. Order XXII Rule 4(4) of Code of Civil Procedure reads as follows:

“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 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. A reading of above provisions would make it clear that if the defendant in a suit failed to file written statement or failed to appear in the suit dies, the Trial Court may pronounce the judgment against the said defendant notwithstanding the death of such defendant, provided the Court passed an order exempting the plaintiff from bringing the legal representatives of such defendant, who remained exparte. This Court in Krishnaveni and four others Vs Ramachandra Naidu and others, 1998 SCC Online Madras 155, following earlier Division Bench judgment in Janabai Ammal @ Gunabosshani Vs T.A.S. Palani Mudaliar and others, AIR 1981 Mad 62 held as follows:

“18. From the paragraph extracted above, it is clear that when a judgment is pronounced in a suit against a deceased defendant after according necessary exemption under sub-rule (4), no abatement as such shall be deemed to have taken effect, in as much as the Judgment itself is deemed to have been pronounced during the life-time of the deceased defendant. In other words the moment exemption from substitution of legal representatives of a defendant is granted under Order 22, Rule 4 (4), even if there was an abatement by operation of sub-rule (3) of Order 22, its effect is taken away. This would be the harmonious construction of sub-rule (4) which advance the cause of justice.

19. Exemption can be given by the Court to the plaintiff from the necessity of substituting legal representatives of a deceased defendant subject to the satisfaction of the requirement of the said sub-rule, if the Court thinks it fit to do so, even without an application filed by the plaintiff. Filing