MOHAMMAD MUSTAQEEM Vs. AFTAB AHMAD

JUDGEMENT

(1.) THIS petition filed under Art. 226 of the Constitution challenges the validity of an order of the Special Judge Economic Offences. Allahabad, dated 29-1-1983, rejecting a revision filed by the petitioners under S. 115, Civil P. C. The revision had been preferred against the order of the Civil Judge dated 24-4-1982, passed in Original Suit No. 86 of 1964.

(2.) SUIT No. 86 of 1964 had been filed by Aftab Ahmad for partition against a number of persons, including one Hafiz Rahim Bux, who had been arrayed as defendant 4. He died on July 22, 1977, leaving behind Nanhey and eleven others as his legal heirs. On 29-10-1977, the plaintiff Aftab Ahmad moved an application in the trial court for substitution of legal heirs of the deceased Hafiz Rahim Bux. Subsequent to the moving of the substitution application, the plaintiff applied for inclusion of one more name in the list of the heirs of deceased Hafiz Rahim Bux. These applications were opposed by the contesting defendant. Before these applications could be disposed of, the plaintiff also applied for setting aside the abatement and condonation of delay. In the meantime. Nanhey and others, who were the legal heirs of the deceased Hafiz Rahim Bux, made an application under O. 1, R. 10, CPC, for being impleaded as parties to the suit on the ground that they were the legal heirs of the aforesaid deceased.

(3.) THERE used to be a great deal of controversy about the effect of not bringing on record the heirs and legal representatives of the defendant who did not either file the written statement or contest the suit. As a remedial measure Calcutta Madras, Karnataka and Orissa High Courts had inserted a new sub-rule in R. 4 of O. 22 C. P. C. to the effect that substitution of the legal representatives of a non-contesting defendant would not be necessary and the Judgment delivered in the case would be as effective as if it had been passed when the defendant was alive. The Joint Committee of Parliament recommended for adoption of the said rule in O. 22, R. 4 Civil P. C. The recommendations made by it were : "the Committee are, therefore, of the view that in order to avoid delay in substitution of the legal representatives of the deceased defendant and consequent delay in the disposal of the suits, similar provision may be made in the Code itself. New sub-r. (4) in R. 4 of O. 22 has been inserted accordingly. "