LexMATA PRASAD MATHUR (DEAD) BY LRS. versus JWALA PRASAD MATHUR & ORS.
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A B [2013] 1 S.C.R. 1106 MATA PRASAD MATHUR (DEAD) BY LRS. v. JWALA PRASAD MATHUR & ORS. (Civil Appeal No. 1457 of 2013) FEBRUARY 20, 2013 [T.S. THAKUR AND GYAN SUDHA MISRA, JJ.] Code of Civil Procedure, 1908 - Or.22, r.4(4) - Suit for declaration, partition and injunction - Death of a non- e contesting defendant - Failure of the plaintiffs-respondents to bring on record the LRs of such defendant - Held: Did not result in abatement of the suit - Requirement of substitution of the LRs of such non-contesting defendant could be legitimately dispensed with by the Court by virtue of the power D of exemption abundantly available to it under Or.22, r.4(4). The question that arose for determination in the present appeal was whether the suit filed by the plaintiffs- respondents seeking a decree for declaration, partition E and injunction against the appellants abated on the failure of the plaintiffs to file an application for substitution of the Legal Representatives of a deceased defendant 'V'. The trial Court, when approached by the plaintiff for deletion of the name of the deceased defendant 'V' and setting aside of the abatement, held that the suit had F abated in toto and accordingly dismissed the same. In an appeal filed by the plaintiffs against that order, the First Appellate Court held that the trial Court had not properly considered the issue in the light of the nature of the averments made in the plaint and the relief sought by the G plaintiff. The Court accordingly set aside the judgment and order passed by the trial Court with the observation that the demise of 'V' and failure of the plaintiff to bring his legal representatives on record did not affect the H 1106 MATA PRASAD MATHUR (DEAD) BY LRS. v. JWALA 1107 PRASAD MATHUR & ORS. maintainability of the suit. The High Court affirmed that A order, and hence the instant appeal. Dismissing the appeal, the Court HELD: 1. This Court is inclined to agree with the order of the First Appellate Court that the suit had not B abated no matter for a reason different from the one that prevailed with that Court. It is common ground that 'V'- defendant was proceeded ex parte as he had not appeared to contest the suit or file a written statement. Substitution of the legal representatives of such a C defendant could be legitimately dispensed with by the trial Court in view of the provisions of Order XXll Rule 4 Sub- Rule 4. The High Court rightly noticed this aspect in its order albeit the manner in which the High Court dealt with the same is not all that satisfactory. Be that as it may, so D long as the power of exemption was available to the trial Court, the same could and ought to have been exercised by the First Appellate Court while hearing an appeal assailing the dismissal of the suit as abated. [Paras 3, 4] [1109-E-F; 1110-C-D] E 2. The history of the amendment of Order XXll, Rule 4 may be traced to highlight the purpose underlying the same. The Legislature incorporated the provision of Order XXll Rule 4(4) with a specific view to expedite the process of substitution of the LRs of non-contesting defendants. In the absence of any compelling reason to the contrary, the Courts below could and indeed ought to have exercised the power vested in them to avoid abatement F of the suit by exempting the plaintiff from the necessity of substituting the legal representative of the deceased G defendant-'V'. The view taken by the First Appellate Court and the High Court that, failure to bring the legal representatives of deceased did not result in abatement of the suit can be more appropriately sustained on the strength of the power of exemption that was abundantly H 1108 SUPREME COURT REPORTS [2013] 1 S.C.R. A available to the Courts below under Order XXll Rule 4 (4) of the CPC. [Paras 5, 9) [1110-E; 1113-E-G] 3. In the case at hand, the legal representatives of the deceased defendant 'V' have already been brought on 8 record in place of their uncle (V's brother) who died issueless. They can, therefore, represent the estates left behind by both the brothers. Grant of exemption in that view is only a matter of maintaining procedural rectitude more than any substantial adjudication of the matter in controversy. This Court has at any rate adopted a liberal C approach in setting aside abatement of suits. The trial court shall now proceed to dispose of the suit on merits expeditiously. [Para 10 & 11) [
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