Zahirul Islam vs Mohd. Usman And Ors
- SCC(2003) 1 SCC 476
- Neutral2002 INSC 569
- SCR[2002] Supp (5) SCR 712
Ratio decidendi
The rule this decision rests on
Where a defendant dies during pendency of proceedings and the plaintiff has not obtained the exemption contemplated under Order XXII Rule 4(4) of the Code of Civil Procedure, 1908, the legal representative of the deceased defendant must be brought on record and substituted; the court cannot proceed to pronounce judgment against the deceased defendant merely because he failed to appear and contest the suit during his lifetime, absent such exemption having been granted by the court.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
This appeal is filed against the order of the High Court at Delhi in Civil Revision Petition No. 25 of 2000 made on January 11, 2000.
The impugned order was passed by the High Court on the application of the appellant-legal representative of deceased Defendant No.2 who is said to have died on 1st February, 1995. He sought stay of execution of the decree in proceedings under Order IX Rule 13 of the Code of Civil Procedure, 1908. That application was dismissed'. He approached the High Court by filing civil revision petition. The High Court dismissed the revision on the ground that the deceased Defendant No.2 had not chosen to appear before the trial court and the matter proceeded ex-parte during his liftetime. The order of the High Court is under challenge in this appeal.
It would be necessary to refer to Order XXII 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) xxx xxx xxx
(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 the death took place."
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.
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 deceased Defendant No.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.
The civil appeal is, accordingly, allowed. No costs.
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