ORDER
S. Rajeswaran, J.
1. C.R.P.(PD)No. 1453/2005 filed under Article 227 of the Constitution of India against the order dated 14.9.2005 in M.P. No. 186/2005 in E.P. No. 180/1999 in RCOP No. 177/1991 on the file of the X Judge, Court of Small Causes, Chennai.
2. C.R.P.(PD)No.1454/2005 filed under Article 227 of the Constitution of India against the order dated 29.8.2005 in M.P. No. 518/2005 in M.P. No. 186/2005 in E.P. No. 180/1999 in RCOP No. 177/1991 on the file of the X Judge, Court of Small Causes, Chennai.
3. C.R.P. (NPD) No. 62/2006 filed under Section 115 of the C.P.C., against the order dated 15.11.2005 passed in E.A. No. 4022/2005 in E.P. No. 1291/2005 by the IX Asst. City Civil Court, Chennai.
4. As the parties in all the three Civil Revision Petitions are one and the same, common order is being passed to dispose of all the Civil Revision Petitions.
5. The petitioners in C.R.P. No. 62/2006 are the Legal Representatives of their deceased mother Pushpamani Ammal. The said Pushpamani Ammal (hereinafter called the landlady) when she was alive filed RCOP No. 177/1991 against the respondent in C.R.P.(NPD) No. 62/2006 (hereinafter called the tenant) under Section 10(2) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960, hereinafter called 'the Act', for evicting him on the ground that the tenant committed wilful default to pay the rent in respect of the petition schedule property, namely, house and ground situate in Thiruvalluvar Street, Rajaram Metha Nagar, Chennai-29 for the period commencing from 1.9.1987 to 30.11.1990.
6. The RCOP was stoutly resisted by the tenant by denying any landlord-tenant relationship between them. In fact, the tenant affirmed that he has not even seen the face of the landlady in his lifetime and he never paid any rent to her. It is the further case of the tenant in the counter statement that his father occupied the vacant land and put up a hut in the petition schedule property in 1940 and the husband of the landlady permitted the tenant to continue the occupation and put up the superstructure. It is the further case of the tenant that he paid a sum of Rs. 1 lakh to the husband of the landlady for permitting the tenant to occupy the petition premises permanently. This counter statement was filed by the tenant in RCOP No. 177/1991 in June 1991. The rent controller allowed the RCOP and ordered eviction of the tenant, against which an appeal was filed in RCA No. 148/1995 before the appellate authority and the same was also dismissed. The C.R.P. No. 3059/1998 filed by the tenant against the order of the appellate authority was also dismissed by this Court on 10.3.1999. At the time of the order being passed by this Court in CRP No. 3059/98, the counsel for the tenant prayed 12 months time for vacating the premises but this Court granted 9 months time from 1.3.99 to 30.11.99 subject to the tenant's filing an affidavit of undertaking within 2 weeks and paying the entire arrears of rent.
7. It is an admitted position that the tenant did not file any affidavit nor paid the arrears of rent as directed by this Court in CRP No. 3059/98. Therefore the landlady filed E.P. No. 180/1999, in which the tenant filed a counter in January 2000 stating that there is an agreement to sell the petition schedule property by the landlady in favour of the tenant and as the landlady did not come forward to execute the sale deed, the tenant filed O.S. No. 3946/99 on the file of the 18th Asst. City Civil court, Chennai. As the suit and the application for injunction are pending before the City Civil Court, the tenant contended that E.P. No. 180/1999 is to be dismissed.
8. The tenant filed O.S. No. 3946/99 in April 1999 for the specific performance of the contract entered in the year 1999. The landlady entered appearance in O.S. No. 3946/99 and filed a written statement resisting the suit claim. On 9.3.2000 the tenant was set exparte in E.P. No. 180/1999 and delivery was ordered by the execution court. The tenant filed M.P. No. 184 and 185 of 2000 for setting aside the exparte order dated 9.3.2000 and also for the stay of the execution of the warrant of delivery of possession. These two petitions were dismissed for default in March 2000. On 5.4.2000 when the bailiff went to the premises to execute the warrant of delivery of possession, one Vasantha obstructed delivery, necessitating the landlady to file M.P. No. 513/2000 for removing obstructions. On 10.8.2001, the landlady passed away and therefore the revision petitioners in C.R.P.(NPD)No.62/2006, filed M.P. No. 837/2001 on 25.9.2001 to bring them on record as Legal Representatives of the deceased landlady, in E.P. No. 180/99. Thereafter an exparte decree was passed in O.S. No. 3946/99 on 20.12.2002, i.e., after the death of the landlady on 10.8.2001. On 29.1.2004, M.P. No. 837/2001 was allowed and the revision petitioners in C.R.P(NPD) No. 62/2006 (hereinafter called the Legal Representatives) were brought on record in E.P. No. 180/99.
9. The tenant who obtained a decree in O.S. No. 3946/99 filed an I.A. No. 5192/2005 on 3.2.2005 before the trial court for condoning the delay of 693 days for depositing the balance amount in the suit and in that I.A., notice was ordered to the landlady. A memo was filed on behalf of the landlady (deceased) informing that the landlady died on 10.8.2001 itself and therefore the same might be taken note of and the suit might be closed as abated. The tenant also filed a memo by stating that no abatement arises in view of Order 22 Rule 4(4) of CPC and requested the trial court to exercise its power under Order 22 Rule 4(4) CPC. It is not in dispute that both the memos were recorded by the trial court but no order was passed on the basis of these two memos. On 11.4.2005, the counsel for the tenant made an endorsement in I.A. No. 5192/2005 by stating that since the entire sale consideration of Rs. 1,10,000/- has already been paid prior to filing of the suit, I.A. No. 5192/2005 is unnecessary and hence the petition may be dismissed as not pressed. On the basis of the endorsement, the trial court dismissed I.A. No. 5192/2005 as not pressed on the very same day.
10. Now the tenant filed M.P. No. 187/2005 in E.P. No. 180/99 to condone the delay of 1774 days in seeking to restore M.P. No. 184/2000, filed by the tenant to set aside the exparte order dated 9.3.2000, ordering delivery of possession. The tenant has also filed M.P. No. 186/2005 under Section 47 C.P.C., contending that the order of the rent controller is inexecutable. M.P. No. 187/2005 was dismissed by the execution court and therefore the tenant filed two revision petitions in C.R.P. Nos. 877 and 878 of 2005 and this Court dismissed the revision petitions on 1.7.2005. This Court has made it very clear that the tenant cannot have any ground to agitate the rent control proceedings any further and if the tenant is having a decree in his favour, he could very well work out his remedy independent of the issue if any available to him. The tenant filed E.P. No. 1291/2005 in O.S. No. 3946/99 to execute the decree dated 20.12.2002. In that E.P., the Legal Representatives filed E.A. No. 4022/2005 under Section 47 of C.P.C., by contending that as decree itself was passed against a dead person, the same is a nullity in the eye of law and therefore the same is inexecutable. The executing court by order dated 15.11.2005 dismissed E.A. No. 4022/2005 and aggrieved by the same the Legal Representatives filed C.R.P.(NPD)No.62/2006.
11. The tenant filed M.P. Nos. 517/2005 and 518/2005 in E.P. No. 180/1999 in RCOP No. 177/91 before the executing court under the rent control proceedings. M.P. No. 517/2005 was filed by the tenant to reopen M.P. No. 186/2005, filed by the very same tenant under Section 47 C.P.C., to contend that E.P. No. 180/99 is inexecutable. M.P. No. 518/2005 in E.P. No. 180/99 was filed by the tenant to receive additional documents. The executing court by order dated 29.8.2005 allowed M.P. No. 517/2005 for the purpose of receiving the written arguments and dismissed the M.P. No. 518/2005 filed to receive additional documents. The executing court thereafter on 14.9.2005 dismissed M.P. No. 186/2005 itself. Aggrieved by the order dated 29.8.2005 in M.P. No. 518/2005, the tenant filed C.R.P.(PD)No.1454/2005 and aggrieved by the order dated 14.9.2005 made in M.P. No. 186/2005, C.R.P.(PD)No.1453/2005 was filed by the tenant. Thus all the Civil Revision Petitions are being heard together and a common order is being passed.
12. Heard Mr. T.R.Rajagopalan, learned Senior Counsel appearing for the Legal Representatives of the landlady and the learned Counsel for the tenant. I have also perused the documents filed and the judgments referred to by them in support of their submissions.
13. The learned Senior Counsel appearing for the Legal Representatives submitted that the decree obtained by the tenant on 20.12.2002 in O.S. No. 3946/99, after the death of the landlady on 10.8.2001 is a nullity in the eye of law and therefore the E.P., filed by the tenant in E.P. No. 1291/2005 is to be dismissed. According to the learned Senior Counsel, once it is brought to the notice that the decree was passed after the death of the landlady, the defendant in the suit, there is no decree in the eye of law and therefore E.P. No. 1291/2005 itself is not maintainable.
14. Per contra, the learned Counsel for the tenant submitted that the death of the landlady was brought to the tenant's knowledge on 23.3.2005 only when a memo was filed before the trial court in I.A. No. 5192/2005 in O.S. No. 3946/99. Therefore, according to the learned Counsel for the tenant, Order 22, Rule 4(4) C.P.C., will come into operation and the decree shall have the same effect and force as if it had been passed against the living person.
15. In reply, the learned Senior Counsel appearing for the Legal Representatives submitted that Order 22 Rule 4(4) C.P.C., will apply in a case where the judgment is not yet pronounced by the trial court and even otherwise no order has been obtained by the tenant from the trial court for exempting him from the necessity of substituting the Legal Representatives of the landlady. The learned Senior Counsel relied on the following decision in support of his submission:
1) AIR 1982 Delhi 62 Yog Raj v. Yogeshwar Raj
2) : AIR1992Mad159 Elisa v. A. Doss
3) 1996(2) L.W. 694 Abdul Wahab v. Raman Panickar and Ors.
4) : (1998)IMLJ34 Vasudeva naicker, (Died) v. T.A. Madhavan
5) : AIR1998Mad379 Krishnaveni v. Ramachandra Naidu
6) : (2001)9SCC342 Shankar Lal and Anr. v. Sakil Ahmed and Ors.
7) : [2002]SUPP5SCR712 Zahirul Islam v. Mohd. Usman
16. The learned Counsel for the tenant in support of his submissions, relied on the following decisions:
1) : AIR1979Pat239 Rajnath v. Shiva Prasad
2) Bhagirath Mal v. Bhagwan Dutt)
3) : AIR1998Pat128 Ganga Singh College v. Bharati Bidya Mandir
4) : (2005)3MLJ78 Radha R. v. B. Saraswathy
17. I have considered the rival submissions carefully with regard to facts and citations.
18. The question that arises for consideration is whether the decree obtained by the tenant in O.S. No. 3946/99 on 20.12.2002, after the death of the landlady, the defendant, on 10.8.2001 is a nullity in the eye of law or Order 22 Rule 4(4) C.P.C., will make it a valid decree as if it has been pronounced before the death of the landlady.
19. For better appreciation, Order 22 Rule 4(4) C.P.C., is extracted below:
4. Procedure in case of death of one of several defendants or of sole defendant:-(1)Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under Sub-rule (1), the suit shall abate as against the deceased defendant.
(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 death took place.
(5) Where-
(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and
(b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under Section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said Section 5, have due regard to the fact of such ignorance, if proved.
HIGH COURT AMENDMENT (MADRAS): (i)At the end Sub-rule (3), add the words 'except as hereinafter provided.
(ii) Insert the following as Sub-rule (4):
(4) The Court whenever it sees fit, may exempt the plaintiff from the necessity to substitute the legal representative of any such defendant who has been declared ex parte or who has failed to file his written statement or who having filed it, has failed to appear and contest at the hearing; and the 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 pronounce before death took place.In the new Sub-rule (4) inserted by the Amendment Act, 1976 the amendment made by the Madras High Court has ;been incorporated.
{4A. Procedure where there is no legal representative:-(1)If, in any suit, it shall appear to the Court that any party who has died during the pendency of the suit has no legal representative, the Court may, on the application of any party to the suit, proceed in the absence of a person representing the estate of the deceased person, or may by order appoint the Administrator-General, or an officer of the court or such other person as it thinks fit to represent the estate of the deceased person for the purpose of the suit; and any judgment or order subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he would have been bound if a personal representative of the deceased person had been a party to the suit.
(2) Before making an order under this rule, the Court-
(a) may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate of the deceased person as it thinks fit; and
(b) shall ascertain that the person proposed to be appointed to represent the estate of the deceased person is willing to be so appointed and has no interest adverse to that of the deceased person.}
20. From the above, it is clear that when the sole defendant in a suit dies and right to sue survives, the court on an application shall cause the Legal Representative of the deceased defendant to be made as a party and shall proceed with the suit. The Legal Representative who was made as a party may make any defence appropriate to his character as Legal Representative. If no application is made to make the Legal Representative a party to the suit within the prescribed time limit, the suit shall abate against the defendant. But if the court thinks fit, it may exempt the plaintiff from the necessity of substituting the Legal Representative of the 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. In such cases, judgment may be pronounced against the defendant notwithstanding the death of such defendant, and the judgment shall have the same force and effect as if it has been pronounced before the death took place. If the plaintiff was ignorant of the death of a defendant and could not make an application for the substitution of Legal Representative within the time resulting in abatement of the suit and makes an application for setting aside an abatement on the ground that he has sufficient cause because of the ignorance of the death for not making the application within the time, the court shall have due regard to the fact of such ignorance if proved.
21. In the present case, the landlady passed away on 10.8.2001, the decree was passed on 20.12.2002. It is the case of the Legal Representatives that they filed M.P. No. 837/2001 in E.P. No. 180/99 to bring the Legal Representatives on record and in that M.P. No. 837/2001, a tenant is also a party and therefore the tenant is very much aware of the death of the landlady even before the decree was passed by the trial court. But the tenant submitted that he was not aware of the death of the landlady until a memo was filed in I.A. No. 5192/2005 on 23.3.2005.
22. According to the learned Senior counsel, even assuming that the knowledge of the death is on 23.3.2005, even then the remedy available to the tenant is to file an application under Order 22 Rule 5 C.P.C., and the tenant cannot take shelter under Order 22 Rule 4(4) C.P.C., as no order of the exemption has been passed by the trial court before pronouncing the judgment.
23. In AIR 1982 Delhi 62 (cited supra), the Delhi High court held as follows:
8. On a plain reading of Sub-rule (3), which is imperative in nature, there can be no doubt and indeed it is well settled that the abatement takes place automatically and no separate order therefor is necessary. That being so, the suit, so to speak, is dead or at an end and a decree passed in the face of such abatement will be a nullity so far as the legal representatives of the deceased defendant are concerned. Further, it may entail the dismissal of the suit as a whole if the absence of the legal representatives of the deceased from the record renders it impossible to proceed with the suit. Such a contingency may arise from the suit becoming imperfectly constituted for want of necessary or essential party i.e., from the fact that the action cannot proceed against the surviving defendants alone in the absence of legal representatives of the deceased defendant. Anyhow, the crucial question for consideration is whether the Court is competent to exempt the plaintiff from the necessity of substituting legal representatives of the deceased defendant notwithstanding the abatement which, as stated above, has automatically set in.
14. With respect I am not persuaded to agree with this line of argument. It is for the simple reason that non-insertion of Sub-rule (4) in Rule 9 of Order 22 and its including in Rule 4 is not per se suggestive of the conclusion that the application for exemption from the necessity of substituting legal representatives must be made before the abatement sets in. As shall be presently seen, Sub-rule (4) can be invoked by the Court at any stage before the judgment is delivered and the discretion vesting in the Court under it is not fettered by the circumstances of abatement of the suit. Indeed, the very purpose of Sub-rule (4) is defeated if the plaintiff is in an eventuality, like the present is called upon first to get the abatement set aside.
18. Having regard to the fact that this new sub-rule has been added for exempting the substitution of the legal representatives of a non-contesting defendant in order to avoid delay which normally occurs in the substitution of the legal representatives of the deceased defendant and consequently delay in the disposal of the suit, there will be hardly any justification to restrict its scope and operation only to the time before abatement of the suit by importing therein something which does not exist there. In other words, Sub-rule (4) is quite independent of untrammelled by the effect of Sub-rule (3) and the Court can exercise the discretion conferred upon it by Sub-rule (4) irrespective of and notwithstanding abatement having set in so long as the judgment is not delivered. If any other interpretation were to be put it will stultify even the deeming provision embodied therein, viz., that the judgment made in such cases be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it had been pronounced before the death took place.
24. In the above decision, the Delhi High Court held that it is well settled that the abatement takes place automatically, no separate order therefore is necessary. That being so, the suit is dead and a decree passed in the face of such abatement is a nullity so far as Legal Representatives of the deceased are concerned. The Delhi High Court further held that Sub-rule (4)of Order 22 is quite independent of and untrammelled by the effect of Sub-rule (3) and the court can exercise the discretion conferred upon it ;by Sub-rule (4) irrespective of and notwithstanding abatement having set in so long as the judgment is not delivered.
25. In : AIR1992Mad159 (cited supra), this Court held as follows:
3. It is seen from the rules that an application to bring the legal representatives on record shall be made within the time limited by law and if no application is made within the said period, the suit shall abate as against the deceased defendant. That is the effect of Sub-rule (3). Sub-rule (4) provides an exception to Sub-rule (3). Under Sub-rule (4), it is open to the Court to pass an order exempting the plaintiff from the necessity of bringing on record the legal representatives of any defendant, who had failed to file a written statement or if having filed the written statement, failed to appear and contest the suit at the hearing. But, the language of Sub-rule (4) is clear enough to show that the court must pass an order exempting the plaintiff from the necessity of substituting the legal representatives. Of course, it is not necessary for the plaintiff to file a written application seeking such exemption, as the rule does not require one. Under the said rule, the court must apply its mind and think it fit, in the facts and circumstances of the case, to grant the exemption. For granting such exemption, the defendant who died should have remained ex parte, either without filing the written statement or after filing the written statement. It is clear from the language of the said rule that the order of exemption shall be passed before a judgment in the case is pronounced. The relevant portion of the said rule reads that the court 'may exempt the plaintiff' and 'judgment may, in such case pronounced.' That part of the sub-rule says that the order of exemption should precede the judgment to be pronounced in the suit. Sub-rule (5) provides for an application to set aside the abatement caused by the failure of the plaintiff to bring the legal representatives of the deceased defendant on record within the time prescribed by law. As stated already, under Sub-rule (3), the suit shall abate. Sub-rule (5) provides that even in cases where the suit has abated, it is open to the plaintiff to file an application to have the abatement set aside on the grounds mentioned in the said rule. Clause(a) of Sub-rule (5) provides for a situation where the plaintiff was ignorant of the death of the defendant and Clause(b) provides that where an application is filed after the expiry of the period specified therefor in the Limitation Act, Section 5 of the Limitation Act could also be invoked. Thus, Rule 4 of Order 22 is comprehensive enough to deal with a situation where the defendant died after the institution of the suit and before passing of the judgment.
14. The finding of the court below that the decree is valid one is clearly erroneous. The decree having been passed against a dead person is a nullity and it cannot be assented against the petitioners. In the circumstances, this revision petition is allowed and the order of the executing court in E.A. No. 1732 of 1969 is set aside and H.P. No. 704 of 1989 is dismissed as not maintainable in view of the fact that the decree is a nullity. Both parties shall bear their own costs.
26. In the above decision, this Court held that the language Sub-rule (4) of Order 22 is clear enough to show that the court must pass an order exempting the plaintiff from the necessity of substituting the Legal Representatives. It is further held that the order of exemption shall be passed before a judgment in the case is pronounced. The learned Single Judge of this Court after analysing the provisions of Order 22 Rule 4 held that the rule is comprehensive enough to deal with a situation where the defendant died after the institution of the suit and before passing of the judgment. The learned Judge further concluded that the decree passed against a dead person is a nullity and the same cannot be executed against the Legal Representatives.
27. In 1996(2) L.W. 694 (cited supra), this Court held that when the plaintiff did not take steps for the appointment of guardian as per the order of the court and an exparte decree was passed, the non-appointment of guardian makes the decree a nullity in the eye of law.
28. In : (1998)IMLJ34 (cited supra), this Court held as follows:
11. ...Before going into Rule 4(4) it is better to verify Rule 11 at the foremost. Order 22 Rule 11 runs as follows:Order 22 Rule 11.Application of Order to appeals:- In the application of this order to appeals, so far as may be, the word 'plaintiff' shall be held to include an appellant, the word 'defendant' a respondent, and the word 'suit'an appeal.
In the light of the above said provision, let me see order 22, Rule 4(4) of C.P.C. Even before referring the amended Rule 4(4). I shall extract the Madras amendment which stood prior to the amendment made by the Central Act 104 of 1976. Rule 4(4)which stood prior to the amendment is extracted hereunder:
High Court Amendment: (Madras)-
(i) At the end of Sub-rule (3), add the words 'except as hereinafter provided.
(ii) Insert Sub-rule (4):
(4) The court whenever it sees fit, may exempt the plaintiff from the necessity to substitute the legal representative of any such defendant who has been declared ex parte or who has failed to file his written statement or who having filed it, has failed to appear and contest at the hearing; and the 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 death took place.(1927)'If we read Rule 4(4) on the basis of Rule 11, there may not be any defect or bar in disposing of the appeal even without bringing the legal representatives of the deceased, who was properly served notice from this Court prior to his/her death. Now I shall consider the position after Central Amendment (Amendment Act 104 of 1976) which reads as follows:
Rule 4(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 pronounced before death took place.Here also after insertion of Rule 4(4) by Act 104 of 1976, by reading Rule 11 together if any such respondent who has failed to appear and contest the appeal at the hearing even in the absence of any petition for substituting the legal representatives of the deceased respondent, it is open to the court to pronouncement judgment/order against the said respondent notwithstanding the death of such respondent and the said judgment/order shall have the force and effect as if it has pronounced before death took place. A reading of Rule 4(4) prior to the amendment as well as after the amendment makes the position clear that if any one of the respondents failed to appear and contest the appeal at the hearing, it is always open to the court to pronounce and pass judgment against the said respondent notwithstanding the death of such respondent. In such event, the judgment/order shall have the same force and effect as if it has pronounced before death took place.
12. Apart from the specific provision in the Act, it is also useful to refer two decisions cited by Mr. T.R. Mani, learned senior counsel. The first one is Velappan v. Parappan : AIR1969Mad309 which has been rendered prior to the Central amendment. A reading of the said decision clearly shows that the provisions of Order 22, Rule 4(4) could be availed of at any time before judgment. The other decision is in the case of Janabai Ammal v. T.A.A. Palani Mudaliar : AIR1981Mad62 . The said decision has been decided after the Central amendment. Their Lordships in the Division Bench, after considering the earlier decision of Natesan, J., in Velappan v. Parappan : AIR1969Mad309 as well as other decisions of various High Courts have concluded thus:
13. Natesan, J., in Velappan v. Parappan : AIR1969Mad309 , taking the decision in Lakshmanan Chettiar case : AIR1935Mad236 as settled proposition and following the same, held as follows:
In my view the provisions of Order 22, Rule 4(4), could be availed of at any time before judgment....If a person is pro forma respondent, having no interest in the litigation, the rule providing for abatement cannot apply.' The Karnataka High Court in Rathjim v. Rajamma : AIR1977Kant20 , agreeing with the view expressed by Natesan,J., in Vellappan v. Parappan : AIR1969Mad309 , has ruled thus: 'If the court, in exercise of its discretion, grants exemption to the plaintiff from the necessity to substitute the legal representatives of the concerned defendant, the court can proceed to dispose of the suit and pronounce judgment against such defendant notwithstanding the fact that the legal representatives of such defendant have not been brought on record. When such judgment is pronounced, Sub-rule (4) expressly provides that it shall have the same force and effect as if it had been pronounced before the death took place. It, therefore, follows that when a judgment is pronounced in a suit against the deceased defendant, after according necessary exemption under Sub-rule (4), no abatement as such shall be deemed to have taken effect. As the judgment itself is deemed to have been pronounced during the lifetime of the deceased defendant, it is obvious that the abatement shall not be deemed to have taken effect. As, in law, it has to be deemed that no abatement has taken effect.Recently, in Nepal Chandra v. Rebati Mohan AIR 1979 Gau 1 the Gauhati High Court, agreeing with the view expressed by this Court in Lakshmanan v. Chidambaram : AIR1935Mad236 and Velappan v. parappan : AIR1969Mad309 , observed that
the provisions of Sub-rule (4) of Order 22 are applicable to appeal as well as to suit and the power to exempt under the said sub-rule can be exercised at any time before the judgment, even after the abatement has taken place.' The learned Judge in that case has also pointed out that as Sub-rule (4) has not specifically insisted on the filing of an application for exemption, unlike some of the other provisions in the Code of Civil procedure making the filing of an application obligatory for obtaining any orders from the court under the concerned provisions, the contention raised in that case that since an application was not filed for exemption under rule (4), the exemption should not be granted, had no force.
We are in full agreement with view expressed by the Division Bench of this Court in Lakshmanan v. Chidambaram : AIR1935Mad236 , by Natesan, J., in Velappan v. Parappan : AIR1969Mad309 and by the other High Courts in the decisions referred to above, and accordingly we grant exemption to the appellant-plaintiff from the necessity of substituting the legal representatives of the deceased fifth respondent in his place. In this context we would like to point out that though as per the proviso to Section 6 of the Hindu Succession Act, the devolution would be under the Act and not by survivorship if any female relative or a male relative claiming through that female relative as specified in Class I of the schedule survives the deceased.
Explanation II to the said proviso clearly states that neither a person who has separated himself from the coparcenary before the deceased nor any of his heirs, can claim on intestacy a share in the estate. Thus, it is clear that neither the fifth respondent nor his heirs would be entitled to any share in the suit property. Therefore, no purpose would be served by impleading the legal representatives of the fifth respondent. Irrespective of the necessity or otherwise for an application for exemption, the appellant in A.S. No. 598 of 1974 has now filed a petition in C.M.P. No. 1150 of 1980 for exempting her from impleading the legal representatives of the firth respondent. The petition is allowed.
Both the above referred decisions are directly on the point in issue. I have already concluded that the fourth respondent has been served with notice of this Court in this appeal. She has failed to appear and contest the appeal. In view of the above fact, after the death of the fourth respondent, there is no obligation on the part of the appellants to implead the legal representatives of the said deceased respondent. In view of the above stated legal position, the contention of Mr. T.R.Mani, learned senior counsel that even in the absence of any petition to bring the legal representatives of the deceased fourth respondent, there is no impediment for this Court to pronounce judgment against the said respondent. I may also point out that apart from the legal position, it is brought to my notice that after knowing the death of the fourth respondent, the appellants have filed necessary petitions, viz., C.M.P.SR. Nos. 18566, 18567 and 18568 of 1992 before this Court to bring on record the legal representatives of the deceased fourth respondent in this appeal. During the course of hearing, it is also brought to my notice that even though the said petitions have been numbered by the Registry, those petitions are not readily available/traceable. The learned Counsel for the appellants filed three identical true copies of the petitions to show that the appellants have taken necessary steps and those petitions have been placed before me. In the light of the legal position mentioned above, it is open to this Court to exempt the appellants from the necessity of substituting the legal representatives of the fourth respondent herein, who has failed to appear and contest the appeal. Hence even though the said original applications are not brought before this Court, in view of the above legal position, I hold that the appeal may be proceeded, disposed of and appropriate order passed against the fourth respondent also notwithstanding the death of fourth respondent and the judgment decree or order so passed shall have the same force and effect as if it has been pronounced before death took place.
29. In the above decision, this Court held that the provisions of Order 22 Rule 4(4) could be availed of at any time before judgment.
30. In : AIR1998Mad379 (cited supra), this Court held as follows:
18. From the paragraph extracted above, it is clear that when a judgment is pronounced in a suit against a deceased defendant after according necessary exemption under Sub-rule (4), no abatement as such shall be deemed to have taken effect, inasmuch as the judgment itself is deemed to have been pronounced during the life-time of the deceased defendant. in other words the moment exemption from substitution of legal representatives of a defendant is granted under Order 22, Rule 4(4), even if there was an abatement by operation of Sub-rule (3) of Order 22, its effect is taken away. This would be the harmonious construction of Sub-rule (4) which advance the cause of justice.
19. Exemption can be given by the court to the plaintiff from the necessity of substituting legal representatives of a deceased defendant subject to the satisfaction of the requirement of the said sub-rule, if the court thinks it fit to do so, even without an application filed by the plaintiff. Filing of written application under the said sub-rule for getting exemption from substitution of legal representatives is not mandatory requirement of the said sub-rule. This view of mine gets support from the decision in Janabai Ammal @ Gunabosshani v. T.A.S. Palani Mudaliar and Ors. : AIR1981Mad62 and Elisa and Ors. v. A. Doss : AIR1992Mad159 . M. Srinivasan, J., (as He then was) in the case of Elisa and Ors. v. A. Doss : AIR1992Mad159 , in paragraph 3 has stated thus:
It is seen from the rules that an application to bring the legal representatives on record shall be made within the time limited by law and if no application is made within the said period, the suit shall abate as against the deceased defendant. That is the effect of Sub-rule (3). Sub-rule (4) provides an exception to Sub-rule (3). Under Sub-rule (4), it is open to the court to pass an order exempting the plaintiff from the necessity of bringing on record the legal representatives of any defendant, who had failed to file a written statement or if having filed the written statement failed to appear and contest the suit at the hearing. But, the language of Sub-rule (4) is clear enough to show that the court must pass an order exempting the plaintiff from the necessity of substituting the legal representatives. Of course, it is not necessary for the plaintiff to file a written application seeking such exemption, as the rule does not require one. Under the said rule, the court must apply its mind and think it fit, in the facts and circumstances of the case, to grant the exemption. For granting such exemption, the defendant who died should have remained ex parte, either without filing the written statement or after filing the written statement. It is clear from the language of the said rule that the order of exemption shall be passed before a judgment in the case is pronounced. The relevant portion of the said rule reads that the court 'may exempt the plaintiff' and 'judgment may, in such case pronounced. That part of the sub-rule says that the order of exemption should precede the judgment to be pronounced in the suit. Sub-rule (5) provides for an application to set aside the abatement caused by the failure of the plaintiff to bring the legal representatives of the deceased defendant on record within the time prescribed by law. As stated already, under Sub-rule (3), the suit shall abate. Sub-rule (5) provides that even in cases where the suit has abated, it is open to the plaintiff to file an application to have the abatement set aside on the grounds mentioned in the said rule. Clause(a) of Sub-rule (5) provides for a situation where the plaintiff was ignorant of the death of the defendant and Clause (b) provides that where an application is filed after the expiry of the period specified therefor in the Limitation Act. Section 5 of the Limitation Act could also be invoked. Thus, Rule 4 of Order 22 is comprehensive enough to deal with a situation where the defendant died after the institution of the suit and before passing of the judgment.paragraph 13 of the judgment in Janabai Ammal @ Gunabosshani v. T.A.S. Palani Mudaliar and Ors. : AIR1981Mad62 is already extracted above, which also supports the view that the filing of the application under Order 22 Rule 4(4) C.P.C., is not always necessary.'
20. If exemption from substitution of legal representative of a deceased defendant can be given by the court under the said sub-rule, at any time before pronouncement of the judgment without even an application, there is no reason as to why such an application cannot be made even after the abatement of a suit against a defendant in a given case. The said sub-rule also does not impose any limitation or restriction in this regard, that an application can be made only before abatement of a suit takes place as against a particular defendant.
22. In Sub-rule (4) of Order 22, Rule 4, no period is prescribed for seeking exemption from the necessity of substituting the legal representatives, and such exemption could be granted by court in appropriate cases at any time before pronouncing judgment. The said sub-rule is in the nature of an exception to the general rule that, when within the given time by law, if no application is made for substituting of the legal representatives, the suit shall abate. The learned District Munsif, in the case on hand, has found fault with the plaintiff for having not made an application for bringing the legal representatives on record along with the I.A., made under Order 22, Rule 4(4), which, in my view, is not correct. When an application is made under the new Sub-rule (4) for exemption from the necessity of substitution of the legal representatives, there was no need to get the abatement set aside arises only when the party wants to bring the legal representatives on record.
31. In the above judgment also this Court reiterated this principle that when a judgment is pronounced in a suit against a deceased defendant after according necessary exemption under Sub-rule (4), no abatement as such shall be deemed to have taken effect as the judgment itself deemed to have pronounced during the lifetime of the deceased defendant. This Court further held that in Sub-rule (4) Order 22 Rule 4, no period is prescribed for seeking exemption from the necessity of substituting the Legal Representatives and such exemption could be granted by court in appropriate cases at any time before pronouncing judgment.
32. In : (2001)9SCC342 (cited supra), the Hon'ble Supreme Court held that when the amended provision of Order 22 Rule 4(4) had no retrospective effect and when the suit was filed as per the C.P.C., existed at the relevant time, it was for the plaintiff to have taken steps for substitution of the defendant and in the absence of such steps the suit had abated under Order 22 Rule 3.
33. In : [2002]SUPP5SCR712 (cited supra), the Hon'ble Supreme Court held as follows:
5. It would be necessary to refer to Order 22 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 defendant:-(1) to (3) * * *
(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 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 the deceased Defendant 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.
34. In the above decision, the Supreme Court held that when permission was not granted by the court under Sub-rule (4), of Order 22 Rule 4, the Legal Representatives of the deceased defendant are entitled to be brought on record in the suit as the exemption contemplated under Order 22 Rule 4(4) is not automatic.
35. In : AIR1979Pat239 (cited supra), the Patna High court held as follows:
9. In my opinion, the legislature has put two conditions while applying the provisions of Order 22, Rule 4(4), and they are-(1)that the provision will apply in a case where a defendant has failed to file a written statement, or he having filed it, has failed to appear and contest the suit at the hearing, (2) that this provision will apply where no order of abatement has been recorded in the case.
If the abatement order has been recorded by the court, then the provisions of Order 22, Rule 4(4) shall not apply. If the aforesaid conditions are fulfilled, the court can apply provisions of Order 22, Rule 4(4) at any time before delivery of judgment.
In the present case, the admitted position is that defendants 1 and 10 had not filed the written statement. They also did not appear to contest the suit. It is also an admitted position that an abatement order in respect of the death of defendants 1 and 10 had not been recorded by the trial Judge. In the present case, these conditions have been satisfied and, as such, the court was justified in law in dispensing with substituting the legal heirs of defendants 1 and 10 under Sub-rule (4) Order 22, Rule 4 of the Civil P.C.
30. However, with due deference to the learned Judge of the Calcutta and Orissa High courts who decided the above cases, I find myself unable to reconcile with the view taken by them in the matter and feel inclined to take the view that the amendment has liberalised the provision to a very large extent in the case of dormant defendants, inasmuch as Sub-rule (4) of Rule 4 of Order 22 is intended to apply to all such cases where even he deemed abatement might have taken place, i.e., the period of 90 days might have expired from the death of a party, but no express order in that regard is recorded. Taking the narrower view, in my opinion, would cause violence to the wider amplitude indicated by the Parliament by using the expression 'whenever it thinks fit', and will frustrate the object of the amendment to a very large extent. I would also seek support for this view from the answer given by me to the first question, i.e., the provision is to apply to all cases where an order of abatement has not been expressly recorded. Taking any other view of the question will render my decision inconsistent.
36. In the above decision, the Patna High Court held that if the two conditions put by legislature in Order 22 Rule 4(4) are complied with, the court can apply the provisions of Order 22 Rule 4(4) at any time before delivery of judgment.
37. In (cited supra), the Rajasthan High Court held as follows:
3. I have heard the learned Counsel for the parties. During the course of arguments it has not been disputed by the learned Counsel for the non-applicant that no legal appearance had been made by the deceased during the pendency of the trial and that the learned Counsel for the applicant-defendant had put in appearance on behalf of the deceased also without filing any Vakalatnama and that during the pendency of the suit statement was made by the learned Counsel representing the applicant in the learned trial court that the written statement filed by the applicant-defendant should be treated as the written statement of the deceased-defendant as well, but the learned trial court had refused to treat the same as the written statement of the deceased-defendant. The suit in question had been filed by the non-applicant for specific performance of the agreement to sell said to have been executed by the deceased in his favour in respect of the property in dispute which is said to have been sold by the deceased to the applicant in violation of the terms of the agreement and the defendant-applicant had been put in possession of the property. It is also the common case of the parties that the property in dispute is situated in District Jhunjhunu within the State of Rajasthan and the deceased was resident of the State of Bihar and that the sale deed in favour of the applicant had been executed by a person who had been given a Power of Attorney by the deceased. The deceased-defendant not having made appearance and the appearance having been made on his behalf without any authority from him on the basis of a memorandum of appearance and the counsel on the basis of the said memorandum having not been accepted as a duly appointed Advocate and because of that fact the written statement filed by the applicant was not taken as the written statement of the deceased shows that, although, no specific order in this regard was passed, proceedings against him were ex parte, and in these circumstances, it cannot be said that it was within the knowledge of either the plaintiff non-applicant or the defendant-applicant that deceased had died during the pendency of the suit and in these circumstances this fact was not brought to the notice of the learned trial court who passed the impugned decree. Even otherwise, in view of Sub-rule (4) of Rule 4 of Order 22 of the Code of Civil Procedure it was not obligatory, in the circumstances, for the plaintiff to have brought on record the legal representatives of the deceased during the pendency of the suit and as such the appeal having been filed by the applicant impleading the deceased as respondent No. 1 and the report having been received that he had died, there was no question of impleading his LRs., as he had died before the suit was decided and not during the pendency of the appeal. In view of these facts, I am of the view that it cannot be said that the appeal can be said to have abated or that the decree passed by the learned trial Court was nullity as no legal representative had been brought on record. Consequently, I am of the view that the order dated 5.11.1993 dismissing the appeal as having abated should be recalled and appeal should be heard on merits.
38. In the above decision the Rajasthan High court held that a decree against a dead person is not nullity when deceased defendant had not filed written statement and had not made legal appearance during pendency of trial and in fact the trial had proceeded against him exparte.
39. In AIR 1998 pat. 128 (cited supra), the Patna High court held as follows:
7. The above rule, it would appear, is in two parts. While the first part exempts the plaintiff from the necessity of substituting the legal representative of a non-contesting defendant to avoid unnecessary delay in disposal of suits, the second part makes the decree binding on a defaulting or recalcitrant defendant even after his death. The normal rule is that no decree is to be passed against a dead person, and if passed, is a nullity in the eye of law. In that sense the rule carves out an exception. By a kind of legal fiction, what would otherwise would have been a nullity is made real, effective and binding. Obviously, the object is to ensure that the defendants do not ignore the process of the court. It was in order to create an awareness that the decree may be pronounced against them notwithstanding the death, which would have the same effect if it had been passed while they are alive, if exemption is granted to the plaintiff, that this provision was made. Thus, while the rule exempts the plaintiff from substituting a legal representative of a deceased defendant in certain situation, it also enables the court to pronounce the judgment against such defendant. A duty is, therefore, cast upon the court to satisfy itself that the condition precedent in exercise of power are made out. Where there has been no valid service of summons, it is obvious, there was no occasion for the concerned defendant to file written statement or contest the suit. In these premises, I am inclined to accept the submission of the counsel, as a proposition of law, that where defendant dies soon after the institution of the suit or is already dead on the date the suit is instituted, issue of summons is an empty formality and where summons is issued otherwise or by registered post, no presumption of deemed service under Order 5, Rule 198A(2) can be drawn. In such a situation, the court cannot pass any order of exemption.
40. In the above decision, the Patna High court observed that Order 22 Rule 4 while exempting the plaintiff from substituting a Legal Representative of a deceased defendant in certain situation, it also enables the court to pronounce the judgment against such defendant.
41. In : (2005)3MLJ78 (cited supra), this Court held as follows:
11. The axiomatic principle of civil jurisprudence is that the legality of the decree cannot be canvassed before the executing court and therefore the learned Assistant Judge has rightly rejected such contention put forth on behalf of the revision petitioner herein and held that the decree has become final, as the revision petitioner miserably failed to agitate the same before the trial court to work out her remedies in a manner known to law. hence, this Court is unable to accept such an argument advanced by the revision petitioner and finds that since the revision petitioner failed to take steps to set aside the ex parte and allowed the same to become final, such contention has to be heard to be rejected.
42. In the above judgment, this Court held that it is not for the defendant to canvass the legality of the decree before the executing court when no steps were taken to set aside the exparte decree and allowed the decree to become final.
43. In the light of the above legal principles, as culled out from the above judgments, if the facts of the present case are gone into, I am of the considered view that the decree passed by the trial court on 20.12.2002 in O.S. No. 3946/99 is a nullity in the eye of law as the landlady who is the sole defendant in the suit passed away as early as 10.8.2001.
44. The decisions referred to by me would make it clear that exemption contemplated under Order 22 Rule 4(4) is not automatic and an order of an exemption is to be obtained by the plaintiff from this Court, that too, before pronouncement of judgment.
45. It is not in dispute that only a memo was filed on behalf of the tenant in O.S. No. 3946/99 on 31.3.2005, that too, after the pronouncement of judgment on 20.12.2002. It is also not in dispute that the memo was only recorded by the trial court and it is not the case of the tenant that a specific order has been passed by the trial court under Order 22 Rule 4(4) exempting the tenant from substituting the Legal Representatives of the landlady. In such circumstances, the decree dated 20.12.2002 is a nullity in the eye of law and it is not saved by Sub-rule 4 of Rule 4 of Order 22 as contended by the learned Counsel for the tenant.
46. The executing court has wrongly placed its reliance on the decision of this Court reported in : (2005)3MLJ78 (cited supra) in which the facts are totally different and there was no occasion for the court to deal with the provisions of Order 22 Rule 4 C.P.C. The court below is clearly erred in law in holding that exemption was granted by the trial court on the basis of the memo filed by the tenant when no such order has been passed by the trial court granting exemption to the tenant from substituting the Legal Representatives of the landlady. Therefore, the order of the executing court dated 15.11.2005 is vitiated and consequently the same is liable to be set aside.
47. Hence C.R.P(NPD)No.62/2006 is allowed and the order dated 15.11.2005 made in E.A. No. 4022/2005 in E.P. No. 1291/2005 is set aside and the Application filed by the Legal Representatives in E.A.4022/2005 under Section 47 C.P.C., is allowed by holding that the decree dated 20.12.2002 is a nullity in the eye of law and the same is inexecutable against the Legal Representatives of the landlady. C.M.P. No. 473/2006 and V.C.M.P. No. 56/2006 are closed.
48. Insofar as the C.R.P. Nos. 1453 and 1454 of 2005 are concerned, these revision petitions were filed against the order passed by the executing court under the rent control proceedings dismissing the petition filed by the tenant under Section 47 C.P.C., and another petition filed for receiving additional documents in M.P. No. 186/2005. In view of the orders passed by this Court in C.R.P. No. 3059/98, it was made very clear that there is a landlord-tenant relationship between the parties and both the authorities below have rightly ordered eviction. In the order passed in C.R.P. Nos. 877 and 878 of 2005, this Court has clearly held that it was admitted that the revision petitioner therein is a tenant and the revision petitioner therein cannot have any ground to agitate the matter in the rent control proceedings any further. Because of that order dated 1.7.2005 in C.R.P. Nos. 877 and 878 of 2005, the tenant pursued the execution proceedings on the basis of the exparte decree dated 20.12.2002 and I have already held above in C.R.P.(NPD)No.62/2006 that that decree is a nullity in the eye of law and the same is inexecutable against the Legal Representatives. In view of the order passed by this Court in C.R.P. No. 3059/98, C.R.P. Nos. 877 and 878 of 2005 and C.R.P.(NPD)No.62/2006, the tenant has no right to pursue the rent control proceedings before the executing court. Further, the court below has correctly passed the order in M.P. No. 518/2005 and in M.P. No. 186/2005 keeping in mind the orders passed by the High court in C.R.P. No. 3059/98 and C.R.P. Nos. 877 and 878 of 2005.
49. In such circumstances, I do not find any illegality nor infirmity in those orders warranting interference under Article 227 of the Constitution of India.
50. In the result, I do not find any merit in the two C.R.Ps., namely, C.R.P.(PD)Nos.1453 and 1454 of 2005 and consequently they are dismissed as devoid of merits. The X Small Causes Court, Chennai is hereby directed to dispose of the E.P. No. 180/1999, before the end of July 2007. No costs. C.M.P. No. 17409/2005 is also dismissed.