KALYANI BHAI Vs. MADAN NADAR

JUDGEMENT

(1.) The plaintiff was non-suited at the lower appellate stage mainly on the reason of procedural aspects. Therefore, this Second Appeal mainly raising two substantial questions of law centered around Order 22 Rule 4(4) of the Code of Civil Procedure and also the non-joinder of necessary parties to the suit. The suit was dismissed only on those technical grounds.

(2.) The 4th defendant was set ex-parte in the suit. Later, the 4th defendant died on 24.8.1981 during the pendency of the said suit. Far later, on 2.12.1982, the plaintiff filed I.A. No. 3745/1982 seeking an order to exempt him from impleading the legal representatives of the 4th defendant who had been set ex-parte as mentioned above, invoking the provision in Rule 4(4) of Order 22. That was allowed by the trial Court. The lower Appellate Court, when that matter was re-agitated by defendant Nos. 1 and 2, found that the provision could not have been invoked by the plaintiff by the time LA. was filed, because the suit had abated as far as the 4th defendant was concerned. So, the first substantial question of law arising in this case is whether exemption under the said rule could be sought for after the suit had so abated.

(3.) The Courts below held that such a petition could not have been filed after abatement, relying on the decisions -reported in Lakshmi Charan Panda v. Satyabadi Behera. Dhruba Bhoi and Ors. v. Brundabati Bhoiani and Annapurna Debi v. Harsundari Desai These decisions were rendered before the amendment to the Code of Civil Procedure effected in 1976 introducing that provision. At that time, in several States, because of the amendment effected by the respective High Courts to the Code of Civil Procedure, a provision similar to that presently contained in sub-rule (4) of Rule 4 of Order 22 had been introduced. It is interpreting the said provision that the said Courts in the said decisions held that the power vested with the Court to exeMpt a plaintiff from irnpleading the legal representatives of a defendant under the said rule shall be exercised before the abatement of the suit and cannot be exercised after abatement. The Orissa High Court held that-