SHIV SHANKER RICE AND GENERAL MILLS Vs. MANGI LAL
HIGH COURT OF RAJASTHAN
SHIV SHANKER RICE AND GENERAL MILLS
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K. S. LODHA, J. -
(1.)THIS is a defendant's revision against the order of the learned District Judge, Jalore dated 21. 10. 83 granting exemption to the plaintiff from bringing the legal representatives of the deceased defendant No. 7 Nand Kishore on record.
(2.)NAND Kishore defendant No. 7 had died on 16 8. 82 and an application for bringing his legal representatives on record had not been made within 90 days. Thereafter an application was made for that purpose on 25. 2. 83. Later the plaintiff also moved an application under Order 22 Rule 4 (4) C. P. C. on 22. 4. 83 praying for exemption from bringing the legal representatives of the deceased NAND Kishore on record. It is an admitted fact that NAND Kishore has not filed any written statement nor had appeared before the court to contest the suit. The Court granted the exemption as prayed.
I have heard learned counsel for the parties.
The question before me is whether exemption under Order 22 Rule 4 (4)C. P. C. could not be granted by the court because the application for such an exemption had not been filed within 90 days of the death of the defendant. As a matter of fact there is a divergence of opinion between various High Courts in this respect. Lakshmi Charan Panda vs. Satyabadi Behra (1), Dhruba Bhoi vs. Brundabati (2) and Hiru Sepai vs. Sultan Sepai (3) propounded the view that the application for such exemption has to be filed within 90 days of the death of the defendant because thereafter the suit automatically abates as against the deceased defendant and the court is left with no power to exempt the plaintiff from bringing the legal representatives of the deceased on record.
On the other hand Velappan Pillai vs. Parappan Panickar (4), S A. Rahim vs. Rajamma (5), Nepal Chandra Saha vs. Rebati Mohan Saha (6), Rajnath Sahgal vs. Shiva Prasad Sinha (7) and Mohammad Mustaqeen vs. Astab Ahamad (8) lay-down that the power of the court to exempt the plaintiff from bringing the legal representatives of the deceased defendant who has not filed the written statement or having fi!ed the same has not appeared to contest the suit at the hearing is not fattered by the limitation of 90 days after which the suit as against the deceased must be deemed to have abated and the court can even thereafter grant such an exemption. They have also observed that as a matter of fact no application for such an exemption is necessary and the court can of its own accord exercise its discretion in this respect.
When the provision of Order 22 Rule 4 (4) C. P. C. are thus capable of more than one interpretation as has been taken by the various High Courts and the learned District Judge has adopted one of those interpretation, it cannot necessary be held that the decision of the learned District Judge suffers from a patent error of jurisdiction and, therefore, no interference with its order in revision is called for and the revision deserves to be rejected on this ground alone. All the same I have considered the views of the different High Courts referred to above and I respectfully agree with the view propounded by Madras, Karnataka, Gauhati, Patna and Allahabad High Courts. It would not be necessary for me to recapitulate all the grounds set-forth in support of the view that the discretion under Order 22 Rule 4 (4) C. P. C. can be exercised even after the expiry of 90 days from the date of the death of the defendant. I may only add that as a matter of fact when exemption is granted under Order 22 Rule 4 (4) C. P. C, the question of abatement does not arise. Order 22 Rule 4 (3) of course states that when in the time limited by the law no application is made under sub-rule (1) the suit shall abate against the deceased defendant but the newly added sub-rule (4) carves out an exception to this inasmuch as it clearly lays-down that when an exemption is thus granted, judgment may in such case be pronounced against the said defendant not withstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before the death took place. Thus by the legal fiction created by this sub-rule (4) of Rule 4 of Order 22 C. P. C. the deceased defendant would be deemed to be living even at the time of the judgment in a case in which an exemption under this provision is granted and when the judgment is deemed to have been pronounced as if it been pronounced before the death of the defendant took place, the question of abatement envisaged under sub-rule 3 of this Rule does not arise. In this view of the matter it clearly appears to me that the view taken by Madras, Karnataka, Gauhati, Patna and Allahabad High Courts is the better view and 1 respectfully agree with the same and adopt the same.
(3.)THEREFORE, the learned District Judge was justified in granting the exemption even after expiry of 90 days from the death of Nand Kishore. The revision must, therefore, fail and is hereby summarily rejected. .
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