Full Judgment
L. Narasimha Reddy, J.
1. The petitioner filed O.S. No. 12 of 2001 in the Court of Senior Civil Judge, Sanga Reddy, against the respondents for partition. All the seven defendants impleaded therein were served. Defendants 1 to 6 entered appearance on receiving the summonses. However, the 7th defendant, by name Khaja Sirajuddin remained ex parte. At a later point of time, he died. Thereupon, the petitioner filed I.A.No. 268 of 2004 under Rule 4(4) of Order XXII CPC to exempt him from bringing the legal representatives of the 7th defendant on record. The trial Court rejected the application through its order dated 11-2-2005. Hence, this revision.
2. Sri Mohd. Ghulam Hussain, the learned Counsel for the petitioner submits that the very purpose of enacting Rule 4(4) of Order XXII CPC was to exempt the plaintiff in a suit from bringing on record, the legal representatives of a defendant, who remained ex parte and died later, and the rejection of the application of the petitioner is contrary to it. He further submits that even if the application is allowed, it does not preclude the legal representatives of the deceased 7th defendant from coming on record at a later point of time, if they so want.
3. Though respondents 1 to 6 were served, they did not choose to enter appearance.
4. The 7th defendant, in the suit filed by the petitioner herein remained ex parte. Subsequently, he died. The petitioner came forward with an application to exempt him from taking steps to bring the legal representatives of the 7th defendant on record. The trial Court rejected the same.
5. Whenever a party to the suit dies during the pendency of the proceedings, corresponding obligation is cast upon the parties concerned, to bring the legal representatives of the deceased party, on record. Failure to do so would entail in abatement of the suit. Sub-rule (4) of Rule 4 of Order XXII CPC enables the Court, to relieve the plaintiff in a suit, from the obligation to bring the legal representatives of the deceased defendant on record, in case, such defendant remained ex parte. The basis for such a course is that when the party did not choose to respond to the summons issued by the Court during his lifetime, his estate cannot stand on a better footing, after his death.
6. In Mohammad Mustaqeem v. Aftab Ahmad, AIR 1983 All. 368, the legislative history of the provision was traced and it was held that the plaintiff in a suit cannot be compelled to bring the legal representatives of a deceased defendant in case, such defendant remained ex parte. In the instant case, the relief claimed in the present suit is the one for partition. It is deemed to be pending till a final decree is passed. In case, the legal representatives of the deceased-7th defendant, feel that they are entitled to come on record, it shall be open to them, at any stage, before the final decree is passed. As such, no prejudice can be said to have been caused to any one, in case, the petitioner is exempted from filing an application at this stage. On the other hand, it would accord with the letter and spirit of Rule 4(4) of Order XXII CPC.
7. For the foregoing reasons, the civil revision petition is allowed. The order under revision is set aside and consequently, the LA. shall stand allowed. It is, however, made clear that the exemption granted to the petitioner shall not preclude the legal representatives of the deceased-7th defendant from coming on record, at any point of time, before the final decree is passed.