Sapuram Pedda Reddenna Chetty Vs. Pottakula Jamru Jan and Others - Court Judgment

Excerpt:
civil - abatement - order 22 rule 4-a, order 41 rule 14 and section 2 (11) of code of civil procedure, 1908 - deceased executant of promissory note - suit against sons and daughters of deceased - decree claimed for against deceased's property in hands of defendants - deceased's brother made a party to suit - brother did not make appearance in court and expired during pendancy of suit - averments made by defendants that deceased's brother not entitled to share in property - legal heir of brother does not represent estate of deceased ? suit rejected by lower court - appeal preferred - heirs of brother not made party to appeal - non-impleadment not a ground for quashing appeal - held, appellate court's order rejecting appeal invalid - matter remitted back to appellate court for decision according to merits. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter. scientifically or common sense point of view, even though ghee is not directly obtained from milk (which is certainly a product of cow/buffalo), it is certainly a product of a product of livestock i.e., cow or buffalo. it would be rather illogical or irrational to say that ghee is not a milk/dairy product or to say that it is not a product of livestock. section 2(x) and 2(iv) of the act used the plural products of livestock. the legislative intention is very clear that not only a product of livestock like milk (when notified by government), butter etc., are products of livestock but even derivative items (derived from a product of livestock) are intended to be product of livestock for the purpose of the act. thus the term ghee is to be interpreted on the basis of expression products of livestock as defined in section 2(xv) of the act. whatever products are declared as such by the government by notification, they become products of livestock for purpose of the act. consequently it was held that ghee is the product of livestock and by reason of power conferred under section 3(1) read with section 3(3) of the act on them it is competent for the government to declare ghee as product of livestock for the purpose of regulating its purchase and sale, in any notified market area. [per p.s. narayana, j,(dissenting)]if livestock or agricultural produce and the categories thereof had been specified in the statute itself by appending in the schedule or otherwise, that would stand on a different footing from the present provisions of the act which contemplate the issuance of notifications in accordance with the procedure ordained by the provisions specified supra. in view of the clear definition of the livestock and products of livestock, the ghee being derivative of butter or cream, if the language employed in definition to be taken as they stand, the only conclusion would be is that the ghee would not fall within ambit of the definitions aforesaid. sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] declaration of notified area held, it is only under section 3 that government are required to publish draft notification inviting objections and section 3(3) mandates to consider objections and suggestions before issuing declaration order. it is very conspicuous that section 4 does not contemplate any draft notification inviting objections and suggestions before either constituting market committee, establishing notified market area or declaring notified market area for the purpose of levy of market fees. thus, except ordaining government to issue preliminary/draft notification inviting objections at the time of issuing declaration order under section 3(3) of the act nowhere much less under section 4 contemplates issuing a notification inviting objections. when the legislature has chosen to exclude principles of natural justice, the court cannot introduce rule of audi alteram partem and render statutory provisions unworkable. in such a case, maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) would apply. section 7: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] levy of market fee element of quid pro quo - held, levying fees and tax are two forms of exercise of sttaes taxing power. there is no quid pro quo between tax payer and public authority as tax is a part of common burden. it is also well settled that fee is charge for special service or a benefit given to a class of individual fee payers and fee collected need not have correlation with actual service in exactitude but if it is shown that substantial portion of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - the appellate court came to the conclusion that even if the defendant remained ex parte at the stage of trial, non-joinder of the ninth defendant in appeal, who remained ex parte at the stage of trial is fatal, that in the absence of the legal representatives of imam saheb, the suit has abated and as the plaintiff claims for joint and several decree, the entire appeal should fail. be that as it may, under sub-rule (4) of rule 4 of order 22, the court 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. if the order under revision is allowed to stand, it would certainly occasion a failure of justice.order1. the second appeal and the civil revision petition are filed by one sapuram pedda reddenna chetty. he fileda suit being os no. 132 of 1990 for recovery of an amount of rs. 10,000/- under a pronote executed by one hussain saheb. the suit filed against the legal representatives and his elder brother was dismissed by the court of the additional subordinate judge, madanapalli. aggrieved by the same, he preferred first appeal being as no. 132 of 1990. at the stage, defendants 1 to 4 filed interlocutory application being ia no.755 of 1955 under order 1, rule 9 read with order 44, rule 33 and sections 144 and 151 of code of civil procedure, 1908 (for short 'cpc'). the learned additional district judge, allowed ia no.755 of 1995 and on that ground dismissed as no. 130 of 1990. aggrieved by the order dated 27-8-1996 in ia no.755 of 1995. sapuram pedda reddenna chetty (hereinafter called 'the plaintiff') filed crp no.499 of 1997 and aggrieved by the consequential order dated 27-8-1996 in as no.130 of 1990 dismissing the appeal, the plaintiff filed sa no.30 of 1998. therefore, both matters are being disposed of by this common order by referring to the parties as they are arrayed in suit.2. briefly stated the facts are as follows: the plaintiff filed a suit against the wife and four daughters of one hussain saheb alleging that hussain saheb executed a promissory note for rs.10,000/- and obtained a loan for his family necessities. to the said suit being os no.18 of 1983, the elder brother of late hussain saheb viz., imam saheb was also added as defendant no.9. the sons of the daughter of hussain saheb through his first wife were also added as defendants 6 to 8. in the plaint, it was alleged by the plaintiff that hussain saheb died on 19-3-1980 leaving behind defendants 1 to 8, that the property left behind by late hussain saheb is now in possession of the defendants who are liable to pay the debt and prayed for a decree against the estate of the deceased hussain saheb in the hands of the defendants andalso for subsequent interest. defendants 1 to 4 filed written statements demurring the claim. they specifically denied any right or interest in the estate of late hussain saheb as vesting in defendant no.9, the elder brother of late hussain saheb. they also denied the execution of pronote by late hussain saheb. therefore, having regard to the pleadings in the written statement that defendant no.9 has no manner of concern to the estate of hussain saheb, the trial court rightly framed the following issues.'1. whether the suit pronote dated 5-1-1980 is true valid and binding one. if so, to what extent defendants 1 to 4 are liable to pay? 2. whether the interest claimed by the plaintiff is liable to be scaled down under act iv of 1938? 3. to what relief?'3. after conducting the trial in which pws.1, 2 and dw1 were examined and exs.a1 to a5 were marked by the plaintiff, on issue no.1 the trial court recorded the finding that defendants 1 to 4 are not liable to repay the pronote debt.4. feeling aggrieved by the dismissal of the suit, the plaintiff preferred as no.132 of 1990. at the preliminary stage of filing the appeal, he filed an affidavit seeking exemption from payment of requisite fee for issuance of notice to the defendants who remained ex parte i.e., defendants 5 to 8. be it noted that, though imam saheb was served with suit summons, he remained ex parte and during the pendency of trial, he died and the plaintiff did not take any steps either to implead the legal representatives of imam saheb at the stage of trial or while filing as no.132 of 1990. taking advantage of this, the respondents filed ia no.755 of 1995 praying the appellate court to reject the first appeal as not maintainable for non-joinder of the legalrepresentative of imam sahab. the appellate court came to the conclusion that even if the defendant remained ex parte at the stage of trial, non-joinder of the ninth defendant in appeal, who remained ex parte at the stage of trial is fatal, that in the absence of the legal representatives of imam saheb, the suit has abated and as the plaintiff claims for joint and several decree, the entire appeal should fail. accordingly, though in paragraph 7 (concluding paragraph of the order in ia no.755 of 1995) the appellate court purportedly 'dismissed', the ia. in fact, it agreed with the defendants and dismissed the appeal as not maintainable. in view of the orders in ia no.755 of 1995, the first appeal was dismissed by consequential order.5. sri radha krishna reddy, the learned counsel for the appellant in the second appeal and petitioner in the civil revision petition has placed reliance on various provisions of orders 1, 21 and 41 cpc and also the decided cases and submits that having regard to the pleadings, no issue was specifically framed as to the liability of imam saheb, that the trial court recorded a finding to the effect that defendants 1 to 4 are not liable to discharge the debt allegedly incurred by late hussain saheb and therefore, the non-joinder of the legal representatives of imam saheb, who remained ex parte and who died during the pendency of the suit does not debar the plaintiff to pursue the 'appeal suit'.6. the submissions are refuted by sri ramesh, learned counsel representing sri s.v. bhat, learned counsel for the defendants.7. having regard to the rival contentions, the points that arise for consideration are:(1) whether the order in ia no.755 of 1995 dated 27-8-1996 suffers from error apparent on the face of recordin that the court of the additional district judge, madanpalli has committed error in exercise of jurisdiction? (2) whether in the facts and circumstances of the case, bringing the legal representatives of the deceased imam saheb on record by the plaintiff at the stage of appeal is imperative and mandatory?8. order 1, rule 10(2) cpc empowers the court to add or strike out any parties to the suit. it is always permissible for the trial court or the first appellate court to suo motu order to strike out the name of any person who has been improperly joined. conversely, it is also permissible for the court to order for adding the name of any person whose presence is necessary to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the suit. having regard to sub-rule (1) of rule 10 of order 1 cpc when the court at the stage of issues comes to a conclusion that no issue to be settled arises in the suit in relation to the right, duty or liability of a defendant, it is always permissible to the court to strike out the name of such defendant.9. after going through the pleadings in the suit and issues framed and findings recorded thereon, it cannot be denied that there was no issue for adjudication in relation to the right, duty or liability of imam saheb and therefore, at the stage of framing issues under order 14, the trial court ought to have ordered to strike out the name of imam saheb. indeed, in the written statement filed on behalf of the respondents 1 to 4, the wife and daughters of late hussain saheb specifically denied any share of imam saheb in the estate of deceased promisor. it is reasonable to infer from these facts that the trial court was aware of the factual contest and thereforedid not frame any issue to be settled in relation to the liability of imam saheb. further, in the prayer, the decree sought is one against the estate of hussain saheb and not a joint and several decree. therefore, the trial court was justified in proceeding with the trial of the suit even after the death of imam saheb. this court must hasten to add that imam saheb was set ex parte and he died during the pendency of the suit. admittedly, the defendants did not inform the plaintiff's counsel as required under rule 10(a) of order 22. be that as it may, in the absence of memo as required under rule 10(a) of order 22 cpc and in the absence of any adjudicable issue against imam saheb, the court ought to have struck out the name of imam saheb. on this ground, i must hold that the first appellate court grossly erred in assuming that the decree sought is one of joint and several decree against defendants 1 to 4 which in fact is not true.10. order 22 cpc deals with the procedure to be followed in the event of death, marriage and insolvency of the parties to the suit. it is welt settled that if the cause of action survives, even after the death of the defendant, the plaintiff cannot be permitted to proceed with the suit unless the legal representatives are brought on record. if the plaintiff fails to bring the legal representative on record to represent the estate of the defendant, the suit abates. however, after civil procedure (amendment) act, 1976, rule 4-a permits the court to proceed with the matter even in the absence of legal representative at the request of the plaintiff or may appoint the administrator general or an officer of the court to represent the estate of the deceased person. be that as it may, under sub-rule (4) of rule 4 of order 22, the court 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. reading rule 4(a) of order 22 read with section 2(11) and order 41, rule 14(4) of cpc and having regard to the averment in the written statement that imam saheb is not entitled to any share in the estate of late hassain saheb, i must hold that no legal heir of imam saheb represents the estate of hussain saheb and in the true legal sense, none of the successors of imam saheb can be called the 'legal representatives' of late hussain saheb for the purpose of section 2(11) cpc. from this point of view, non-filing of appeal or non-impleadment of successors of imam saheb in the appeal by the plaintiff does not debar him from preferring the appeal and in such a case, the appeal is still maintainable. the facts that the decree was one against the estate of hussain saheb, and that the plaintiff did not pray for a joint and several decree against defendants 1 to 9 and the fact that imam saheb remained ex parte and died during the pendency of appeal would support the above view.11. further, admittedly, at the time of filing of appeal, the plaintiff filed an interlocutory application and sought exemption from payment of the necessary process fee for service of notice on the defendants-respondents 5 to 8 who also remained ex parte but did not take any steps in the case of imam saheb who also remained ex parte but died during the pendency of the suit. the procedure adopted by the plaintiff is legally permissible and cannot be found fault with.12. in municipal board, lucknow v. pannalal, : air1976sc1091 , in almostsimilar circumstances, the supreme court ruled that the non-joinder of legal representatives of deceased co-defendant cannot be allowed to defeat the remedy of appeal to the plaintiff.13. in pannala's case, the municipal board, lucknow filed a suit against seven defendants for rendering account and in the alternative for recovery of a sum of about rs.69,642/-. by the time of the suit, defendants 4 and 6 had migrated to pakistan. therefore, defendants 1 to 3 and 5 filed written statement and the custodian under the administration of evacuee property act was impleaded as defendant no.7 for representing the estate of the migrated defendants 4 and 6. the defence was that in the absence of defendants 4 and 6, the suit is not maintainable and that the suit is barred by limitation. both the important issues were held against the municipal board. on appeal, the finding on issue no.6 (as to whether the suit is maintainable) was reversed by the high court. it also held that as against defendants 1 to 3, the suit is not barred by limitation. however, the high court affirmed the decree of the civil judge in respect of defendant no.5 as the same was barred against defendant no.5. in the review petition riled by the board, the high court refused to review its finding in relation to defendant no.5. the high court certified the matter for appeal to supreme court. before the supreme court, it was contended that the appeal has abated on account of death of the 5th defendant who died six years prior to filing of the appeal. in fact, an application to set aside abatement was also dismissed by the supreme court. but still the supreme court observed that the death of defendant no.5 cannot defeat the rights of municipal board. the relevant conclusion is as under:'we are, however, unable to agree that the question of abatement in this case would arise in view of the fact that even if the suit had been dismissed against defendant 5, the defendants 1 to 3 could individually be sued for rendering account and for recovery of the amount due from them. whether they would be ultimately found by the court to be liable for the plaintiffs claim, is a different matter and will be decided in the suit. there is therefore no substance in the plea that the appeal as a whole has abated on account of the death of mohd. yusuf.'14. therefore, pannalal's case (supra) is an authority for the proposition that even when a joint and several decree is claimed by the plaintiff, in the event of the death of one of the defendants the appeal does not abate.15. before parting with these two matters, having gone through the order of the learned additional district judge, madanapalli in ia no.755 of 1995, i must also observe that the order suffers from lack of proper reasons. the learned additional district judge addressed questions which are not relevant ignoring the foundation of the case as laid in the pleading of the respective parties. for this reason also, the order suffers from illegality. further, the plaintiff lost the suit and in my considered opinion, even at the appellate stage, he can come forward before the court and say that he is not pressing the suit claim as against a particular defendant. the law permits and enables the plaintiff to do so. if the order under revision is allowed to stand, it would certainly occasion a failure of justice. therefore the impugned order is liable to be set aside as the same is vitiated by error in the exercise of jurisdiction vested in the learned additional district judge.16. in the second appeal, the learned appellate court has dismissed as no.132of 1990 only on the ground that ia no.755 of 1995 is allowed. as the order in ia no.755 is set aside, the second appeal is also allowed and the matter is remitted to the first appellate court for disposal on merits in accordance with law.17. for the abovesaid reasons, the civil revision petition and the second appeal are allowed. as no.132 of 1990 shall stand remanded to the court of the additional district judge and a direction shall go to the said court to dispose of the appeal on merits as per law within a period of eight weeks from the date of receipt of a copy of this order.

Judgment:
ORDER

1. The second appeal and the civil revision petition are filed by one Sapuram Pedda Reddenna Chetty. He fileda suit being OS No. 132 of 1990 for recovery of an amount of Rs. 10,000/- under a pronote executed by one Hussain Saheb. The suit filed against the legal representatives and his elder brother was dismissed by the Court of the Additional Subordinate Judge, Madanapalli. Aggrieved by the same, he preferred first appeal being AS No. 132 of 1990. At the stage, defendants 1 to 4 filed interlocutory application being IA No.755 of 1955 under Order 1, Rule 9 read with Order 44, Rule 33 and Sections 144 and 151 of Code of Civil Procedure, 1908 (for short 'CPC'). The learned Additional District Judge, allowed IA No.755 of 1995 and on that ground dismissed AS No. 130 of 1990. Aggrieved by the order dated 27-8-1996 in IA No.755 of 1995. Sapuram Pedda Reddenna Chetty (hereinafter called 'the Plaintiff') filed CRP No.499 of 1997 and aggrieved by the consequential order dated 27-8-1996 in AS No.130 of 1990 dismissing the appeal, the plaintiff filed SA No.30 of 1998. Therefore, both matters are being disposed of by this common order by referring to the parties as they are arrayed in suit.

2. Briefly stated the facts are as follows: The plaintiff filed a suit against the wife and four daughters of one Hussain Saheb alleging that Hussain Saheb executed a promissory note for Rs.10,000/- and obtained a loan for his family necessities. To the said suit being OS No.18 of 1983, the elder brother of late Hussain Saheb viz., Imam Saheb was also added as defendant No.9. The sons of the daughter of Hussain Saheb through his first wife were also added as defendants 6 to 8. In the plaint, it was alleged by the plaintiff that Hussain Saheb died on 19-3-1980 leaving behind defendants 1 to 8, that the property left behind by late Hussain Saheb is now in possession of the defendants who are liable to pay the debt and prayed for a decree against the estate of the deceased Hussain Saheb in the hands of the defendants andalso for subsequent interest. Defendants 1 to 4 filed written statements demurring the claim. They specifically denied any right or interest in the estate of late Hussain Saheb as vesting in defendant No.9, the elder brother of late Hussain Saheb. They also denied the execution of pronote by late Hussain Saheb. Therefore, having regard to the pleadings in the written statement that defendant No.9 has no manner of concern to the estate of Hussain Saheb, the trial Court rightly framed the following issues.

'1. Whether the suit pronote dated 5-1-1980 is true valid and binding one. If so, to what extent defendants 1 to 4 are liable to pay?

2. Whether the interest claimed by the plaintiff is liable to be scaled down under Act IV of 1938?

3. To what relief?'

3. After conducting the trial in which PWs.1, 2 and DW1 were examined and Exs.A1 to A5 were marked by the plaintiff, on issue No.1 the trial Court recorded the finding that defendants 1 to 4 are not liable to repay the pronote debt.

4. Feeling aggrieved by the dismissal of the suit, the plaintiff preferred AS No.132 of 1990. At the preliminary stage of filing the appeal, he filed an affidavit seeking exemption from payment of requisite fee for issuance of notice to the defendants who remained ex parte i.e., defendants 5 to 8. Be it noted that, though Imam Saheb was served with suit summons, he remained ex parte and during the pendency of trial, he died and the plaintiff did not take any steps either to implead the legal representatives of Imam Saheb at the stage of trial or while filing AS No.132 of 1990. Taking advantage of this, the respondents filed IA No.755 of 1995 praying the appellate Court to reject the first appeal as not maintainable for non-joinder of the legalrepresentative of Imam Sahab. The appellate Court came to the conclusion that even if the defendant remained ex parte at the stage of trial, non-joinder of the ninth defendant in appeal, who remained ex parte at the stage of trial is fatal, that in the absence of the legal representatives of Imam Saheb, the suit has abated and as the plaintiff claims for joint and several decree, the entire appeal should fail. Accordingly, though in paragraph 7 (concluding paragraph of the order in IA No.755 of 1995) the appellate Court purportedly 'dismissed', the IA. In fact, it agreed with the defendants and dismissed the appeal as not maintainable. In view of the orders in IA No.755 of 1995, the first appeal was dismissed by consequential order.

5. Sri Radha Krishna Reddy, the learned Counsel for the appellant in the second appeal and petitioner in the civil revision petition has placed reliance on various provisions of Orders 1, 21 and 41 CPC and also the decided cases and submits that having regard to the pleadings, no issue was specifically framed as to the liability of Imam Saheb, that the trial Court recorded a finding to the effect that defendants 1 to 4 are not liable to discharge the debt allegedly incurred by late Hussain Saheb and therefore, the non-joinder of the legal representatives of Imam Saheb, who remained ex parte and who died during the pendency of the suit does not debar the plaintiff to pursue the 'appeal suit'.

6. The submissions are refuted by Sri Ramesh, learned Counsel representing Sri S.V. Bhat, learned Counsel for the defendants.

7. Having regard to the rival contentions, the points that arise for consideration are:

(1) Whether the order in IA No.755 of 1995 dated 27-8-1996 suffers from error apparent on the face of recordin that the Court of the Additional District Judge, Madanpalli has committed error in exercise of jurisdiction?

(2) Whether in the facts and circumstances of the case, bringing the legal representatives of the deceased Imam Saheb on record by the plaintiff at the stage of appeal is imperative and mandatory?

8. Order 1, Rule 10(2) CPC empowers the Court to add or strike out any parties to the suit. It is always permissible for the trial Court or the first appellate Court to suo motu order to strike out the name of any person who has been improperly joined. Conversely, it is also permissible for the Court to order for adding the name of any person whose presence is necessary to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. Having regard to sub-rule (1) of Rule 10 of Order 1 CPC when the Court at the stage of issues comes to a conclusion that no issue to be settled arises in the suit in relation to the right, duty or liability of a defendant, it is always permissible to the Court to strike out the name of such defendant.

9. After going through the pleadings in the suit and issues framed and findings recorded thereon, it cannot be denied that there was no issue for adjudication in relation to the right, duty or liability of Imam Saheb and therefore, at the stage of framing issues under Order 14, the trial Court ought to have ordered to strike out the name of Imam Saheb. Indeed, in the written statement filed on behalf of the respondents 1 to 4, the wife and daughters of late Hussain Saheb specifically denied any share of Imam Saheb in the estate of deceased promisor. It is reasonable to infer from these facts that the trial Court was aware of the factual contest and thereforedid not frame any issue to be settled in relation to the liability of Imam Saheb. Further, in the prayer, the decree sought is one against the estate of Hussain Saheb and not a joint and several decree. Therefore, the trial Court was justified in proceeding with the trial of the suit even after the death of Imam Saheb. This Court must hasten to add that Imam Saheb was set ex parte and he died during the pendency of the suit. Admittedly, the defendants did not inform the plaintiff's Counsel as required under Rule 10(A) of Order 22. Be that as it may, in the absence of memo as required under Rule 10(A) of Order 22 CPC and in the absence of any adjudicable issue against Imam Saheb, the Court ought to have struck out the name of Imam Saheb. On this ground, I must hold that the first appellate Court grossly erred in assuming that the decree sought is one of joint and several decree against defendants 1 to 4 which in fact is not true.

10. Order 22 CPC deals with the procedure to be followed in the event of death, marriage and insolvency of the parties to the suit. It is welt settled that if the cause of action survives, even after the death of the defendant, the plaintiff cannot be permitted to proceed with the suit unless the legal representatives are brought on record. If the plaintiff fails to bring the legal representative on record to represent the estate of the defendant, the suit abates. However, after Civil Procedure (Amendment) Act, 1976, Rule 4-A permits the Court to proceed with the matter even in the absence of legal representative at the request of the plaintiff or may appoint the Administrator General or an Officer of the Court to represent the estate of the deceased person. Be that as it may, under sub-rule (4) of Rule 4 of Order 22, the Court 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. Reading Rule 4(A) of Order 22 read with Section 2(11) and Order 41, Rule 14(4) of CPC and having regard to the averment in the written statement that Imam Saheb is not entitled to any share in the estate of late Hassain Saheb, I must hold that no legal heir of Imam Saheb represents the estate of Hussain Saheb and in the true legal sense, none of the successors of Imam Saheb can be called the 'legal representatives' of late Hussain Saheb for the purpose of Section 2(11) CPC. From this point of view, non-filing of appeal or non-impleadment of successors of Imam Saheb in the appeal by the plaintiff does not debar him from preferring the appeal and in such a case, the appeal is still maintainable. The facts that the decree was one against the estate of Hussain Saheb, and that the plaintiff did not pray for a joint and several decree against defendants 1 to 9 and the fact that Imam Saheb remained ex parte and died during the pendency of appeal would support the above view.

11. Further, admittedly, at the time of filing of appeal, the plaintiff filed an interlocutory application and sought exemption from payment of the necessary process fee for service of notice on the defendants-respondents 5 to 8 who also remained ex parte but did not take any steps in the case of Imam Saheb who also remained ex parte but died during the pendency of the suit. The procedure adopted by the plaintiff is legally permissible and cannot be found fault with.

12. In Municipal Board, Lucknow v. Pannalal, : AIR1976SC1091 , in almostsimilar circumstances, the Supreme Court ruled that the non-joinder of legal representatives of deceased co-defendant cannot be allowed to defeat the remedy of appeal to the plaintiff.

13. In Pannala's case, the Municipal Board, Lucknow filed a suit against seven defendants for rendering account and in the alternative for recovery of a sum of about Rs.69,642/-. By the time of the suit, defendants 4 and 6 had migrated to Pakistan. Therefore, defendants 1 to 3 and 5 filed written statement and the custodian under the Administration of Evacuee Property Act was impleaded as defendant No.7 for representing the estate of the migrated defendants 4 and 6. The defence was that in the absence of defendants 4 and 6, the suit is not maintainable and that the suit is barred by limitation. Both the important issues were held against the Municipal Board. On appeal, the finding on issue No.6 (as to whether the suit is maintainable) was reversed by the High Court. It also held that as against defendants 1 to 3, the suit is not barred by limitation. However, the High Court affirmed the decree of the civil Judge in respect of defendant No.5 as the same was barred against defendant No.5. In the review petition riled by the Board, the High Court refused to review its finding in relation to defendant No.5. The High Court certified the matter for appeal to Supreme Court. Before the Supreme Court, it was contended that the appeal has abated on account of death of the 5th defendant who died six years prior to filing of the appeal. In fact, an application to set aside abatement was also dismissed by the Supreme Court. But still the Supreme Court observed that the death of defendant No.5 cannot defeat the rights of Municipal Board. The relevant conclusion is as under:

'We are, however, unable to agree that the question of abatement in this case would arise in view of the fact that even if the suit had been dismissed against defendant 5, the defendants 1 to 3 could individually be sued for rendering account and for recovery of the amount due from them. Whether they would be ultimately found by the Court to be liable for the plaintiffs claim, is a different matter and will be decided in the suit. There is therefore no substance in the plea that the appeal as a whole has abated on account of the death of Mohd. Yusuf.'

14. Therefore, Pannalal's case (supra) is an authority for the proposition that even when a joint and several decree is claimed by the plaintiff, in the event of the death of one of the defendants the appeal does not abate.

15. Before parting with these two matters, having gone through the order of the learned Additional District Judge, Madanapalli in IA No.755 of 1995, I must also observe that the order suffers from lack of proper reasons. The learned Additional District Judge addressed questions which are not relevant ignoring the foundation of the case as laid in the pleading of the respective parties. For this reason also, the order suffers from illegality. Further, the plaintiff lost the suit and in my considered opinion, even at the appellate stage, he can come forward before the Court and say that he is not pressing the suit claim as against a particular defendant. The law permits and enables the plaintiff to do so. If the order under revision is allowed to stand, it would certainly occasion a failure of justice. Therefore the impugned order is liable to be set aside as the same is vitiated by error in the exercise of jurisdiction vested in the learned Additional District Judge.

16. In the second appeal, the learned appellate Court has dismissed AS No.132of 1990 only on the ground that IA No.755 of 1995 is allowed. As the order in IA No.755 is set aside, the second Appeal is also allowed and the matter is remitted to the first appellate Court for disposal on merits in accordance with law.

17. For the abovesaid reasons, the civil revision petition and the second appeal are allowed. AS No.132 of 1990 shall stand remanded to the Court of the Additional District Judge and a direction shall go to the said Court to dispose of the appeal on merits as per law within a period of eight weeks from the date of receipt of a copy of this order.