High Court
Legal Reasoning
{1} A.O. no. 8 of 2018 R.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADAPPEAL FROM ORDER NO. 8 OF 2018Gajanan S/o. Shankar GhodgaonkarVersusPurushottam Shankar Ghodgaonkarthrough LRs and others.…Mr. Sujit D. Joshi, Advocate for appellant,Mr. S.V. Dixit, Advocate for respondent Nos. 5,6 and 7 CORAM : S.G. CHAPALGAONKAR, J. DATE : 24th MARCH, 2025. ORDER :-1.Present Appeal from Order impugns the order dated18.12.2017 passed by District Judge-2, Amalner, District Jalgaon inR.C.A. No. 24 of 2013 by which learned Appellate Court set aside thejudgment and decree passed by trial court in R.C.S. No. 167 of 2000 andremanded matter back for trial with certain directions. (For sake ofconvenience, parties are referred as per their status in suit).2.Respondent No.1/original plaintiff instituted a suit seekingdecree for partition and separate possession in respect of the suitproperties contending that defendants are his brothers and sisters. Suitproperties are undivided ancestral properties. The father of plaintiff anddefendant i.e. Shankar Ghodgaonkar expired in the year 1959. Plaintiffis entitled for partition and separate possession of property. On22.10.1993 he issued notice to defendant No.1. However, he did not actupon same and consequently, present suit is filed.3.Original defendant Nos. 2A to 2F and 3 and 4, failed to {2} A.O. no. 8 of 2018 R.odtappear in the suit in spite of service of notice. Eventually, suit wasordered to proceed ex-parte against them. Defendant No.1/presentrespondent contested the suit asserting that suit properties are his selfacquired properties. During pendency of suit, defendant No.3 namely,Indira Kalamkar and defendant No.4 Sindhu Kulkarni expired.Plaintiff/appellant filed pursis informing the court that there is nonecessity to bring her legal heirs on record in view of Order 22 of CPC.Eventually, suit proceeded without bringing their legal heirs and finallydecree came to be passed in the suit, thereby determining shares ofrespective parties on partition.4.Respondent No.1 assailed the decree passed in suit beforeDistrict Judge in R.C.A. No. 24 of 2013. During pendency of appeal,legal heirs of defendant No.3 and 4 suo-motu appeared. The appellatecourt observed that in absence of specific application under Order 22Rule 4 for exemption from bringing legal representatives of deceaseddefendant, trial court could not have decreed the suit. Pursis regardingintimation of death with stipulation that LRs of deceased defendants arenot necessary to be brought on record, is held to be insufficientcompliance for invoking jurisdiction under sub-clause (4) of Rule 4 ofOrder 22. Accordingly, appellate court remanded matter back to the trialcourt, directing parties to appear before the trial court on a particulardate and permitting plaintiff to submit application for bringing LRs ofdefendant Nos. 3 and 4 alongwith application for setting asideabatement/condonation of delay, with further direction to expeditiouslydecide such application and conclude proceeding in the suit.5.The appellant/original plaintiff assailed aforesaid order inpresent Appeal From Order.6.Mr. Sujit Joshi, learned advocate for appellant assails the {3} A.O. no. 8 of 2018 R.odtorder of appellate court contending that the order of remand isabsolutely unwarranted in the facts and circumstances of the case. Hewould submit that Order 22 Rule 4(4), so also, Order 1 Rule 10 of CPC,empowers court to permit addition of any party at any stage ofproceeding and grant exemption from bringing LRs of deceaseddefendant/respondent, in case there was no contest to suit or proceedingby that party. Mr. Joshi would submit that proceeding in the suit forpartition is protracted by defendant No.1 by adopting various tactics.According to him, trial court was justified in passing decree in the suiteven against deceased defendants in the light of the provisions of Order22 Rule 4(4). According to him, LRs of defendant Nos. 3 and 4 alreadycame on record of the appeal. They have not challenged decree aspassed by trial court. Since trial court has determined the shares ofdeceased defendant Nos. 3 and 4, no prejudice is caused to their LRs.Both, defendant Nos. 3 and 4, were proceeded ex-parte. Therefore, thedecree without bringing their LRs on record, cannot be faulted. Mr.Joshi further contends that in view of Order 1 Rule 10(2) of CPC, even itis assumed that there is non-compliance of Order 22 Rule 4(4), additionof party can be permitted at appellate stage and decree can be passedagainst or in favour of such party. Mr Joshi, assails remand of the matterwhich would unnecessarily prolong lis. Mr. Joshi would further inviteattention of this court to the order in W.P. No. 6896 of 2015 to contendthat the exercise adopted by appellate court was unwarranted.7.Per contra, Mr. Dixit, learned advocate forrespondent/plaintiff justifies impugned judgment and order of remandpassed by appellate court. He would submit that decree against a deadperson would be nullity in law. Although defendant Nos. 3 and 4 wereproceeded ex-parte in suit, it was incumbent upon plaintiff to bring onrecord legal heirs upon their death. In a partition suit, plaintiff anddefendant both enjoy the status of plaintiff. Decree in absence of {4} A.O. no. 8 of 2018 R.odtnecessary party would also be nullity. Appellate court has rightlyconcluded that in absence of compliance of order 22 Rule 4(4), thedecree as passed by trial court, cannot stand. In support of hiscontentions, he relies upon the judgment of the Apex court in the matterof Budh Ram and others vs. Bansi and others 2010 AIR SCW 5071 andin the matter of Jaladi Suguna vs. Satya Sai Central Trust AIR 2009Supreme Court 2866 and the judgment of this Court in the case of“Reliance Consultancy Services vs. Metro Palutan Investment and othersreported in (2007) 3 Mh. L.J. 546.8.Having considered submissions advanced and reasoningadopted by appellate court in the impugned order, apparently, it is not indispute that original defendant No.3 and 4 were proceeded ex-parte forwant of appearance after service of suit summons. The plaintiff hadpassed on a pursis before trial court regarding death of defendant No.3with stipulation that she is ex-parte, LRs need not be brought on record.Consequently, suit proceeded without legal heirs on record. Finally, trialcourt passed the decree in suit holding that plaintiff and defendant areentitled for partition and separate possession of suit property to theextent of shares as determined. Apart from plaintiff and contestingdefendants, share of defendant Nos.3 and 4 has been determined underthe decree.9.It is not in dispute that before appellate court, legal heirs ofdefendant Nos. 3 and 4 caused their appearance and they are added asparties in appeal. So far as deceased defendant No.3 Indira Kalamkar,vide order below Exh.54, her heirs are taken on record, whereas,defendant No.4 Sindhu Kulkarni, her legal heirs are taken on record videorder passed below Exh.64. As such, before appellate court, they wererepresented. {5} A.O. no. 8 of 2018 R.odt10.In the aforesaid background, the only issue that requiresconsideration in this appeal is, whether the decree passed by trial couldhave been maintained or the appellate court is justified in remanding thematter back to trial court, with liberty in favour of plaintiff, to follow theprocedure for setting aside abatement against deceased respondents andbring on record their legal heirs.11.The issue revolves around provision of Order 22 Rule 4(4) ofCPC, which reads thus :-“ Sub-rule (4) of Rule 4 of Order 22 C.P.C. reads thus:(4) The Court whenever it thinks fit, may exempt the plaintifffrom the necessity of substituting the legal representatives ofany such defendant who has failed to file a written statement orwho, having filed it, has failed to appear and contest the suit atthe hearing; and judgment may, in such case, be pronouncedagainst the said defendant notwithstanding the death of suchdefendant and shall have the same force and effect as if it hasbeen pronounced before death took place.”12.The Supreme Court of India in the matter of Budh Ram andothers vs. Bansi and others (supra), observed in para. 12,13 and 14 asunder :-“12.Abatement takes place automatically by application of lawwithout any order of the court. Setting aside of abatement can besought once the suit stands abated. Abatement in fact results indenial to hearing of the case on merits. Order XXII Rule 1CPC deals with the question of abatement on the death of theplaintiff or of the defendant in a Civil Suit. Order XXII Rule 2relates to procedure where one of the several plaintiffs or thedefendants die and the right to sue survives. Order XXII Rule 3CPC deals with procedure in case of death of one of the severalplaintiffs or of the sole plaintiff. Order XXII Rule 4 CPC, however,deals with procedure in case of death of one of the severaldefendants or of the sole defendants. Sub-clause (3) of Rule 4makes it crystal clear that where within the time limited by law, noapplication is made under sub-Rule 1, the suit shall abate as againstthe deceased defendant. {6} A.O. no. 8 of 2018 R.odt13. Provisions of Order XXII Rule 4 (4) CPC, provide that incase, the deceased defendant did not contest the suit and did not filea counter affidavit, the substitution may not be warranted. In theinstant case, the High Court repelled the submission regardingapplication of Order XXII Rule 4(4) CPC on the ground that thesaid provision requires the presentation of an application before theCourt, before it pronounces its judgment for seeking such a reliefand once such an application is allowed, in that case, it can only betaken against the said defendant notwithstanding the death of suchdefendant and such a decree shall have the same force and effect asif it was pronounced before the death had taken place. This viewstands fortified by the Judgments of this Court in Zahirul Islam Vs.Mohd. Usman & Ors. (2003) 1 SCC 476; and T. Gnanavel Vs. T.S.Kanagaraj & Anr. AIR 2009 SC 2367.Thus, it has rightly been heldby the High Court that the provisions of Order XXII Rule4(4) CPC were not attracted in the facts of this case.14. In State of Punjab Vs. Nathu Ram AIR 1963 SC 89, whileinterpreting the provisions of Order XXII Rule 4(3) CPC read withRule 11 thereof, this Court observed that an appeal abates asagainst the deceased respondents where within the time limited bylaw no application is made to bring his heirs or legalrepresentatives on record. However, whether the appeal standsabated against the other respondents also, would depend upon thefacts of a case.”13.Similarly, aforesaid provision is interpreted by this Court inthe case of Reliance Consultancy (supra) wherein, this court, in para. 7observed thus :-“Under sub-rule (4) of Rule 4 of Order 22 of the C.P.C. the Court,in its discretion, is empowered to exempt the plaintiff from thenecessity of substituting the legal representatives of a deceaseddefendant who has failed to file a written statement or who havingfiled it has failed to appear and contest the suit at the hearing.Where the Court exempts a plaintiff from bringing on record thelegal representatives of a deceased defendant the judgment thatmay be passed in the suit may be pronounced against the deceaseddefendant notwithstanding his death and shall have the same forceand effect as if it has been pronounced before the death took place.It may be noted that sub-rule (4) does not say that in every casewhere the deceased defendant had not filed the written statement orafter having filed the written statement had failed to contest thesuit, the plaintiff would be exempted from the necessity of {7} A.O. no. 8 of 2018 R.odtsubstituting the legal representatives. It only permits a plaintiff tomake a request to the Court, seeking exemption and the Court,exercising judicial discretion, can grant such exemption. Needless,to say that the discretion is to be exercised by the Court judiciallyfor granting or refusing to grant the exemption as requested by theplaintiff.”14.This court in continuation of aforesaid exposition of law,further observed that exemption can be granted even after abatementorder is passed and as such, abatement would not be a barrier inexercising such jurisdiction by court.15.In present case, it is not in dispute that specific applicationseeking exemption from bringing LRs of deceased defendants was neverfiled before trial court. The pursis at Exh.84 was filed in respect of deathof defendant No.3 Indira Kalamkar, stating that since defendant No.3 wasproceeded ex-parte there is no necessity to bring her legal heirs onrecord. This pursis can never be treated as application to exercisediscretion under sub-rule(4) of Rule (4) of Order 22 of C.P.C. Theappellate court has rightly observed in this regard. Apparently, beforepassing decree the trial court has not exercised discretion grantingexemption from bringing LRs of deceased defendants on record. It is truethat trial court has determined the shares of defendant Nos. 3 and 4, butno share is granted to them in house properties and business of jointfamily property. Fact remains that decree against defendant Nos. 3 and4 would not be sustained being against dead person for want of specificexemption under Order 22 Rule 4(4). It is difficult to overcomeaforesaid technical defect even though LRs of deceased defendant Nos. 3and 4 appeared in appeal. In this background, judgment and orderpassed by appellate court thereby remanding matter to trial court cannotbe faulted.
Decision
{8} A.O. no. 8 of 2018 R.odt16.In the result, Appeal From Order is dismissed. However,respective dates for appearance of parties and filing of application forbringing LRs or setting aside abatement, as mentioned in clause (3) ofjudgment of appellate court, are extended by six weeks from today. Restof the order passed by appellate court is maintained as it is.Pending civil application stands disposed off.[S.G. CHAPALGAONKAR, J] grt/-