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2003(1) Supreme 444
SUPREME COURT OF INDIA
(From Delhi High Court)
Syed Shah Mohd. Quadri, Ashok Bhan & S.B. Sinha, JJ.
Zahirul Islam -Appellant
versus
Mohd. Usman & Ors. -Respondents
Civil Appeal No. 8631 of 2002
(Arising out of SLP (C) No. 11288 of 2000)
Decided on 20-12-2002
Counsel for the Parties :
For the Appellant : Nafis A. Siddiqui, Advocate.
For the Respondents : Ms. Binu Tamta, Ms. V. Deepa for Ms. Indu Malhotra and Ms. Pratibha Jain (N.P.), Advocates.
Held : A perusal of sub-rule (4), extracted above, shows that a plaintiff may be exempted from the necessity of substituting the legal representatives of a defendant who has failed to file a written statement or who, having filed it, failed to appear and contest the suit at the hearing and that, in such a case, the judgment may be pronounced against the said defendant notwithstanding the death of such defendant and it shall have the same force and effect as if the judgment has been pronounced before the death took place. In the instant case, it is stated by the learned counsel appearing for the appellant that no permission contemplated under sub-rule (4) was obtained from the court exempting the plaintiff from bringing on record the legal representative of deceased Defendant No. 2. From the order under challenge also, it does not appear that any such permission was sought or granted by the Court. In this view of the matter, the order under challenge cannot be sustained. It is, accordingly, set aside. The appellant was, therefore, entitled to be brought on record in the suit. The civil appeal is, accordingly, allowed. (Paras 6, 7 and 8)
The legal document discusses the procedural requirements for substituting legal representatives of a deceased defendant in a civil suit. It clarifies that under the relevant procedural rules, a plaintiff can be exempted from the obligation to substitute the legal representatives of a deceased defendant if certain conditions are met, such as the defendant failing to file a written statement or not appearing at the hearing. In such cases, the court may pronounce judgment against the defendant without substitution, and this judgment has the same force as if pronounced before death. However, the exemption from substitution requires prior permission from the court, which must be obtained under the specified procedural provisions. The document emphasizes that in the absence of such permission, the judgment or order may be invalid, and the legal representatives should be substituted to ensure proper legal process. The case highlights that failure to seek or obtain the necessary court permission for exemption from substitution renders the proceedings irregular, and the appropriate course is to set aside the order and allow the substitution of the legal representatives.
ORDER
Despite service of notice, none appears for Respondent No. 1.
2. Leave is granted.
3. This appeal is filed against the order of the High Court at Delhi in Civil Revision Petition No. 25 of 2000 made on January 11, 2000.
4. The impugned order was passed by the High Court on the application of the appellant-legal representative of deceased Defendant No. 2 who is said to have died on 1st February, 1995. He sought stay of execution of the decree in proceedings under Order IX Rule 13 of the Code of Civil Procedure, 1908. That application was dismissed. He approached the High Court by filing civil revision petition. The High Court dismissed the revision on the ground that the deceased Defendant No. 2 had not chosen to appear before the trial Court and the matter proceeded ex-parte during his lifetime. The order of the High Court is under challenge in this appeal.
5. It would be necessary to refer to Order XXII Rule 4 of the Code of Civil Procedure, 1908, insofar as it is relevant, which reads as under :
"4. Procedure in case of death of one of several defendants or of sole defendants.-
(1) to (3) xxx xxx xxx
(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 the death took place."
6. A perusal of sub-rule (4), extracted above, shows that a plaintiff may be exempted from the necessity of substituting the legal representatives of a defendant who has failed to file a written statement or who, having filed it, failed to appear and contest the suit at the hearing and that, in such a case, the judgment may be pronounced against the said defendant notwithstanding the death of such defendant and it shall have the same force and effect as if the judgment has been pronounced before the death took place.
7. In the instant case, it is stated by the learned counsel appearing for the appellant that no permission contemplated under sub-rule (4) was obtained from the court exempting the plaintiff from bringing on record the legal representative of deceased Defendant No. 2. From the order under challenge also, it does not appear that any such permission was sought or granted by the Court. In this view of the matter, the order under challenge cannot be sustained. It is, accordingly, set aside. The appellant was, therefore, entitled to be brought on record in the suit.
8. The civil appeal is, accordingly, allowed.
9. No costs.
(N.K.R.) Appeal allowed accordingly.
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