Judgment:
ORDER
Ravi Ranjan, J.
1. This Civil Revision is directed against the order dated 20-11-2006 passed by the Sub-Judge-III, Supaul in Title Suit No. 51 of 1997, whereby he had rejected the petition filed on behalf of the petitioners under Order I, Rule 10 (2) of the Code of Civil Procedure (hereinafter referred to as 'the Code') for their addition as defendants in the Title Suit.
2. This matter was earlier heard on 22-12-2006 by a Bench of this Court and notice was issued upon the plaintiff-opposite party No. 1, who has appeared and filed counter-affidavit.
3. This Civil Revision is being disposed of at this stage with the consent of the appearing parties as they jointly submitted that the plaintiff-opposite party No. 1, only had contested this issue before the Court below.
4. Learned Counsel for the petitioners sub-mined that Title Suit No. 51 of 1997 was filed by the plaintiff-opposite party No. 1 for declaration of right, title and interest over the suit land and for further declaration that the sale deeds executed with respect to the said property was null and void. Mother of the petitioners had been impleaded as defendant No. 2 therein. She died on 6-5-2005 but the plaintiff did not take any step for substitution of her legal representatives despite the fact that she was coming in possession over the part of the suit property and after her death the petitioners are coming in possession thereof. Thus, a petition under Order 1, Rule 10 of the Code was filed by the petitioners, which had been rejected by the Court below holding that the suit was already being heard under Order VIII, Rule 10 of the Code since 4-7-2001 and after 5 years of hearing it was posted for judgment on 21-8-2006 but, in the meantime, the petitioners had filed their petition on 5-8-2006 under Order 1, Rule 10(2) of the Code. However, they did not come immediately after the death of defendant No. 2 on 6-5-2005. The learned Court below had held that since the defendant No. 2 had neither submitted the written statement nor had contested the suit, it was not necessary to implead her legal representatives as defendants.
5. Learned Counsel for plaintiff-opposite party No. 1, submitted that on 22-12-1997, Title Suit concerned' Was' posted for ex parte hearing as despite service of summons the defendant No. 2 (mother of the petitioners) did not appear. However, on 15-1-1998, she appeared and filed a petition for recall of the order of ex parte hearing of the suit. On 9-2-1998 the aforesaid order posting the suit Court concerned passed an order dated 8-6-2001 for hearing of the suit under the provision as contained in Order VIII, Rule 10 of the Code. The matter was heard for five years thereafter and was fixed for judgment on 21-8-2006. In the meantime, on 4-8-2006, the petitioners filed an application stating therein that the mother of the defendant No. 2 had died on 6-5-2005 itself but no step for substitution of the heirs had been taken by the plaintiff and, thus, a prayer was made by them for their addition as parties to the suit under Order 1, Rule 10 of the Code. It had further been submitted on behalf of plaintiff-opposite party No. 1 that since the defendant No. 2 had died without filing the written statement and contesting the suit and the suit proceeded under Order VIII, Rule 10 of the Code, there was no requirement for substituting her legal representatives in view of the provisions contained in Order XXII, Rule 4(4) of the Code. Thus, there was no question of any abatement of suit concerned under Order XXII, Rule 4(3) of the Code. Further contention was that even if it is assumed that the suit had abated as against defendant No. 2, the Court concerned was competent enough to grant leave as aforesaid under Order XXII, Rule 4(4) of the Code. He had placed reliance on the decision of this Court rendered in Md. S. Imam v. Rai Bharat Kumar and Ors. : 2000(3) PLJR 675 : AIR 2000 Pat 321. In the aforesaid case, after the death of one of the defendants the plaintiff had made a prayer before the trial Court for exempting her from the necessity of filing a petition for substituting legal representatives of the defendant No. 3. The said petition had been rejected by the learned Subordiante Judge concerned. The matter was referred by the learned single Judge of this Court to the Division Bench on the question as to whether a Court can proceed with a suit without substitution as provided under Order XXII, Rule 4(4) of the Code, in a case where the defendant dies before the filing of written statement. The Division Bench of this Court had held that the aforesaid Rule under the Code confers discretionary power to the Court to exercise at any stage before the pronouncement of judgment and abatement under Order XXII, Rule 3 of the Code will not fetter the power of Court to grant such exemption inasmuch as Sub-rule (4) is not controlled by Sub-rule (3).
6. However, the question in the present case for determination would be as to whether without any prayer being made on behalf of the plaintiff under Order XXII, Rule 4(4) of the Code for exemption of substituting legal representatives of a defendant, who after appearance has not filed written statement and contested the suit, the exemption under the aforesaid provisions would be automatic as claimed by opposite party or that could only be granted after a prayer having been made on behalf of the plaintiff. In the case of Md. S. Imam (supra), an application to that effect for grant of leave under Order XXII, Rule 4(4) of the Code was made by the plaintiff but the same had been rejected on the ground that abatement had already taken place under Order XXII, Rule 4(3) of the Code. A Division Bench of this Court had held that such abatement will not fetter of the Court to grant such exemption and held that in view of the facts of that Title Suit, the same should have been granted to the plaintiff. However, in the present case, the Title Suit concerned was posted for hearing under Order VIII, Rule 10 of the Code on 4-7-2001 itself, the defendant No. 2, who had not contested the suit by filing written statement, had died on 6-5-2005. The plaintiff had neither taken any step for substitution of her legal representatives under Order XXII, Rule 4 nor had he made any prayer even orally to the Court for exemption from substituting her legal representatives under Sub-rule (4) of Rule 4 of Order XXII. The Court had also not passed any order granting such exemption. After filing of a petition under Order 1, Rule 10 of the Code by the petitioners, in the rejoinder filed, the plaintiff had taken stand that there was no need for taking step for substituting the legal representatives of the deceased defendant No. 2, in view of the provisions under Order XXII, Rule 4(4) of the Code and, thus, a prayer was made to reject the aforesaid petition of the petitioners filed under Order 1, Rule 10 of the Code.
7. In my opinion, after the death of the defendant No. 2, the course open to the plaintiff-opposite party No. 1 was either to substitute the legal representatives under the provisions of Older XXII, Rule 4 or to make a prayer and get exemption under Order XXII, Rule 4 (4) of the Code. Plaintiff did not choose any of the two recourses, available to him. The Court below had also neither held that the suit has abated under Sub-rule (3) of the Rule 4 of Order XXII nor had it granted exemption to the plaintiff for substituting the legal representatives of the deceased defendant No. 2. Now, the question is as to whether the exemption under Order XXII, Rule 4(4) of the Code would be automatic or a prayer will have to be made in this regard.
8. Learned Counsel for plaintiff-opposite party No. 1 had relied upon decision rendered by Madras High Court in Krishnaveni and Ors. v. Ramchandra Naidu and Anr. reported in AIR 1998 Madras 379. The Madras High Court had held that the aforesaid provision had been extended to give discretion to the Court to grant such exemption to the plaintiff in appropriate case even without filing any such application. Thus, the same could even be granted after abatement of the suit. However, the Apex Court in Zahirul Islam v. Md. Usman and Ors. reported in (2003) 1 SCC 476 had held that in case of the death of a defendant, who had failed to appear and contest the suit exemption from bringing on record of legal representatives of such deceased defendant, the exemption under Order XXII, Rule 4(4) of the Code was not automatic and the plaintiff must seek permission of the Court under aforesaid provision of law. Thus, the Supreme Court had held that the appellant, legal representative of the deceased defendant No. 2, in the case concerned was entitled to be brought on record in the suit.
9. In view of the aforesaid discussions, I am also of the view that in the present case, since the plaintiff has neither sought any permission for such exemption under Order XXII, Rule 4(4) of the Code nor has the Court below granted such permission, the petitioners were entitled to be brought on record. Thus, the order dated 20-11-2006 is set aside and the Court below is directed to implead the petitioners being the legal representatives of the deceased defendant No. 2. However, since the petitioners had filed a petition for their addition as party on 5-8-2006, whereas the defendant No. 2 had died on 6-5-2005 itself, this order will be subject to the payment of cost of Rs. 5000/- (Rupees Five Thousand) to the plaintiff-opposite party No. 1.
10. Accordingly, this Civil Revision is allowed.