Sub-rule (4) of Rule 4 of Order 22 allows exemption from substituting legal representatives if the deceased defendant did not contest the suit, without imposing a 90-day application requirement post-death.

JUDGMENT :

Manish Kumar Nigam, J.

1. Heard learned counsel for the parties and perused the record.

2. This writ petition has been filed challenging the order dated 10.03.2021 passed by the appellate court rejecting the application (paper 55 ka-2) filed by the petitioner seeking amendment in the substitution application paper No. 37 Ka-2 filed for substituting the heirs of defendant/respondent no. 3 who died during pendency of the appeal.

3. Brief facts of the case are that original suit no. 89 of 1968 was filed by the petitioner for the relief that compromise petition filed in Supreme Court in Civil Appeal No. 375 of 1957 which was recorded by the court on 19.05.1958 and incorporated in a decree of the said appeal, so far as it purported to convey the property described in a schedule-IV to Shri Bhagwati declaring illegal void and not binding on the plaintiff. In the aforesaid suit one Gauri Shankar Sahi was added as defendant no. 3 who was substituted after his death by Bhuvneshwar Prasad Sahi. The said suit was dismissed by judgment and decree dated 07.05.2012. Against the judgement and decree passed in the suit, first appeal being appeal No. 30 of 2012 was filed by the plaintiff. During the pendency of the appeal Bhuvneshwar Prasad Shahi respondent no. 3 died on 26.10.2018. Petitioner/appellant filed an application for substituting the heirs of deceased defendant/respondent no. 3 being paper no. 37Ka-2. Later on petitioner/appellant filed an application Paper No. 55 Ka-2 for amendment in the substitution application praying for relieving the petitioner/appellant from necessity of substituting the legal representative of deceased defendant/respondent no. 3 in view of Sub-rule (4) of Rule 4 of Order 22 C.P.C. Application Paper No. 55 Ka-2 has been rejected by the appellate court, hence, the present petition.

4. It has been contended by learned counsel for the petitioner that Shri Gauri Shankar Sahi, defendant no. 3 never contested the suit and has not filed written statement during the pendency of the suit. After his death, Bhuvneshwar Prasad Sahi was substituted in his place who happens to be son of Gauri Shankar Sahi during the pendency of the suit. Bhuveneshwar Prasad Sahi too have not filed any written statement or contested the suit. Therefore, the petitioner/appellant prayed that petitioner appellant be exempted from substituting the heirs of deceased respondent no. 3 Bhuvneshwar Prasad Sahi. It has been further contended by learned counsel for the petitioner that no relief in the suit was claimed against defendant no. 3.

5. Shri Anshul Chowdhary, learned counsel appearing for respondent nos. 1 & 2 submitted that no error has been committed by the appellate court in rejecting the application for amendment moved by the petitioner for amending the substitution application filed for substituting the heirs of deceased defendant/respondent no. 3. It has been further submitted that once the substitution application has been filed for substituting the heirs of deceased defendant/respondent no. 3, there is no occasion for the petitioner/appellant to file an application for being relieved from substituting the heirs of deceased defendant/respondent no. 3 under Sub-rule (4) of Rule 4 of Order 22 C.P.C. It has been further submitted by learned counsel for the respondents that deceased defendant/respondent no. 3 died on 26.10.2018 and the present application, purported to be under Sub-rule (4) of Rule 4 of Order 22 C.P.C. was filed on 05.01.2021. In case, application was to be filed by the petitioner/appe