LexSUSHIL K. CHAKRAVARTY (D) THR. LRS. versus M/S. TEJ PROPERTIES PVT. LTD.
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[2013] 5 S.C.R. 243 SUSHIL K. CHAKRAVARTY (D} THR. LRS. v. M/S. TEJ PROPERTIES PVT. LTD. (Civil Appeal Nos. 2600-2601 of 2013) MARCH 19, 2013 [P. SATHASIVAM AND JAGDISH SINGH KHEHAR, JJ.] A B Code of Civil Procedure, 1908 - Order XX/I, rule 4(4) - Suit pending before High Court - Death of sole defendant during pendency of the suit - High Court proceeded with the C matter ex-parte, as against the sole defendant, without impleading his legal representatives in his place - Justification - Held: On facts, the defendant had filed a written statement but had thereafter failed to appear and contest the suit - High Court had taken a conscious decision u!Order XX/I Rule 4(4), D to proceed with the matter ex-parte as against interests of such a defendant, without first requiring the plaintiff to implead the legal representatives of the deceased defendant - This was clearly permissible u/Order XX/I Rule 4(4) - It was done on the High court's satisfaction, that it was a fit case to exempt E the plaintiff from the necessity of impleadin'g the legal representatives of the sole defendant - Determination of the High Court, with reference to Order XX// Rule 4(4), accordingly, upheld. During pendency of a suit before a Single Judge of F the High Court, the sole defendant died. The Single Judge continued the suit proceedings without impleading the legal heirs of the sole defendant as his legal representatives, and thereafter pronounced its judgment. The question which arose for consideration in the instant appeals was whether it is imperative for a court to exempt the plaintiff from the necessity of substituting the legal representatives of a defendant, befo~· G 243 H 244 SUPREME COURT REPORTS [2013] 5 S.C.R. A proceeding with the matter and in the absence of any such express exemption granted by the court, no benefit can be drawn by the plaintiff who has obtained a finding in his favour, without impleading the legal representatives B in place of the deceased defendant. Dismissing the appeals, the Court HELD: 1. It is not a matter of dispute, that the defendant Sushil K.C. had died on 3.6.2003. It is also not a matter of dispute, that on 29.8.2003 the plaintiff Tej Properties had filed an interlocutory application, being IA no.9676 of 2003 under Order XXll Rule 4(4) CPC, for proceeding with CS (OS) no.2501 of 1997 ex-parte, by bringing to the notice of the Single Judge of the High Court, that Sushil K.C. had died on 3.6.2003. That being the acknowledged position, when the Single Judge allowed the proceedings in CS(OS) no.2501 of 1997 to progress further, it is imperative to infer, that the court had taken a conscious decision under Order XXll Rule 4(4) CPC, to proceed with the matter ex-parte as against interests of Sushil K.C., without first requiring Tej Properties to implead the legal representatives of the deceased. defendant. It is therefore, that evidence was recorded on behalf of the plaintiff Tej Properties on 28.1.2005. In the aforesaid view of the matter, there is certainly no doubt, that being mindful of the death of Sushil K.C., which came to his knowledge through IA no.7696 of 2006, a conscious decision was taken by the Single'Judge, to proceed with the matter ex-parte as against the lnterests of Sushil K.C. Tliis position adopted by the Single Judge in CS (OS) no.2501 of 1997 was clearly permissible under Order XXll Rule 4(4) of CPC. A trial court can proceed with a suit under the aforementioned provision, without impleading the legal representatives of a defendant, who having filed a written statement has failed to appear and contest the suit, if the SUSHIL K. CHAKRAVARTY (D) THR. LRS. v. TEJ 245 PROPERTIES PVT. LTD. court considers it fit to do so. All the ingredients of Order A XXll Rule 4(4) CPC stood fully satisfied in the facts and circumstances of this case. The defendant Sushil K.C. having entered appearance in CS (OS) no. 2501 of 1997, had filed his written statement on 6.3.1998. Thereafter, the defendant Sushi! K.C. stopped appearing in the said civil B suit. Whereafter, he was not even represented through counsel. The order to proceed against Sushi! K.C. ex- parte was passed on 1.8.2000. Even thereupon, no efforts were made by Sushi! K.C. to participate in the proceedings of CS(OS) no.2501 of 1997, till his death on c 3.6.2003. It is apparent, that the trial court was mindful of the factual position noticed above, and
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