Prasenjit Mandal, J. - (1.) THIS application is at the instance of the plaintiff and is directed against the order no.135 dated February 21, 2008 passed by the learned Civil Judge (Senior Division), First Court, Burdwan in Title Suit No.55 of 1972 thereby rejecting an application dated February 21, 2008 under Order 22 Rule 4(4) of the C.P.C.
(2.) THE short fact is that the plaintiff petitioner herein instituted a suit for declaration of title, recovery of possession and mesne profits alternatively for refund of purchase money. In that suit, there were 23 defendants. THE plaintiff issued summons upon all of them. THE defendants entered appearance in the suit. Subsequently, the defendant nos.2, 4, 5, 7, 8, 9, 12, 13, 14, 16 and 17 did not file any written statement. THEy did not contest the suit. THE learned Advocate appearing for those defendants intimated the Court about that position. THEreafter, that those defendants died. THE plaintiff filed the said application under Order 22 Rule 4(4) of the C.P.C. By the impugned order, the learned Trial Judge has rejected that application. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the learned counsel for both the parties and on going through the materials on record, I find that the defendant nos.2, 4, 5, 7, 8, 9, 12, 13, 14, 16 and 17 died during pendency of the suit and the learned Advocate appearing on behalf of them before the learned Trial Judge has informed of the Court of such fact. All these happened during the pendency of the suit. The learned Trial Judge dismissed the application under Order 22 Rule 4(4) of the C.P.C. on the ground that since the plaintiff did not seek for substitution or setting aside abatement within the time as prescribed under the law, the suit has abated in respect of those defendants and for that reason the application under Order 22 Rule 4(4) of the C.P.C. could not be allowed. This observation, I am of the view cannot be supported. For better appreciation, the provision of Order 22 Rule 4(4) of the C.P.C. is quoted below:- 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 been pronounced before death took place. Thus, from the above provision of the C.P.C., it is clear that though the deceased defendants got summons of the suit and they appeared in the suit by engagement of a lawyer. They failed to file any written statement within the time as permitted under the provisions of the C.P.C. and ultimately, they died. The learned Trial Judge has rejected the prayer of the plaintiff on the ground that since no steps were taken within the period permissible for substitution and that she did not take any steps for setting aside abatement within the time limit, the suit stands automatically abated against the defendants. It may be noted herein that the suit is still pending and no decree has yet been passed in respect of the suit and so, the application under the said provisions of Rule 4(4) of the C.P.C. was filed during the pendency of the suit. In such a situation, according to the decision of T. Gnanavel Vs. T. S. Kanagaraj and anr. reported in (2009) 14 SCC 294, particularly paragraph nos.23 and 25 and Girdhari Lal Vs. Lazminarain reported in AIR 1990 Rajasthan 15, particularly paragraph no.6, exemption from taking steps for substitution before pronouncement of judgment could well be prayed for under Order 22 Rule 4(4) of the C.P.C.
(3.) FOR proper appreciation of the matter, the provisions of paragraph nos. 23 and 25 of the decision of T. Gnanavel (supra) are quoted below: 23. As noted hereinearlier, a plaint reading of Order 22 Rule 4(4) CPC would clearly show that the court is empowered to exempt a plaintiff from the necessity of substituting the heirs and legal representatives of any such defendant who has failed to file a written statement or who, having filed it, had failed to appear and contest the suit at the time of hearing of the same, but such an exemption can only be granted before the judgment is pronounced and in that case only, it can be taken against the said defendant notwithstanding the death of such defendant and such a decree shall have the same force and effect as if it was pronounced before the death had taken place. 25. we are unable to accede to this submission of Mr. Ranjit Kumar, the learned Senior Counsel appearing on behalf of the appellant for the simple reasons viz. (1) on the abatement caused on the death of the defendant, the suit automatically abated in view of the provisions under Order 22 Rule 4(3) CPC, and (2) from the decision in Zahirul Islam v. Mohd. Usman, it would be evident that no exemption was sought or granted under Order 22 Rule 4(4) CPC in the aforesaid decision. In any view of the matter, Order 22 Rule 4(4) CPC clearly says that such exemption to bring on record the heirs and legal representatives of the deceased could be taken or granted by the court only before the judgment is pronounced and not after it. So, according to the decisions reported above, I am of the view that the learned Trial Judge has failed to exercise the jurisdiction vested in him. He has committed errors of law. So, the impugned order cannot be supported. It should be set aside. The application, therefore, succeeds. It is, therefore, allowed. The impugned order is hereby set aside. The application under Order 22 Rule 4(4) of the C.P.C. stands allowed. The learned Trial Judge shall proceed with the suit from the stage of allowing the said application in accordance with law.;