1. The contesting parties are represented through their learned counsel in court today

2. The present challenge is directed against an order, whereby the trial court recalled a previous order recording abatement of the suit in respect of defendant no. 2 in the suit, since deceased, and conferred the benefit of Order XXII Rule 4(4) of the Code of Civil Procedure to the plaintiff.

3. Learned counsel appearing for the defendant no. 10/petitioner argues that the trial court acted without jurisdiction in doing so, since there was always scope that despite the defendant no. 2 having appeared in the suit but not having filed written statement, the said defendant could have contested the suit and cross-examined the witnesses of the plaintiff. Such opportunity, which was also available to the heirs of the defendant no. 2, who would stepped into the shoes of the defendant no. 2 on substitution, was taken away by the impugned order.

4. Learned counsel for the petitioner further places reliance the provisions of Order 22 Rule 4(4) and Order IX Rule 7 of the Code of Civil Procedure and submitted that, taken in conjunction, the spirit of Rule 7 of Order IX of the Code ought to have been imported to the provisions of Order XXII Rule 4(4) of the Code.

5. Order IX Rule 7 of the Code provides that where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.

6. It is argued that if the said rule was availed of by the defendant no. 2, if alive, there would not arise any question of applicability of Order XXII Rule 4(4) of the Code, which rights also accrued to the heirs of the defendant no. 2.

7. Such contentions are controverted by learned counsel for the plaintiff/opposite party no. 1.

8. It appears from the records that the defendant no. 2 (since deceased) appeared in the suit but failed to file written statement. As such, the provisions of Order XXII Rule 4(4) of the Code were squarely applicable to the said defendant.

9. The said provision stipulates that the court, whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any 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.

10. In the present case, the said deceased defendant, although appeared in the suit, but failed to file written statement.

11. The second portion of sub-rule (4) of Rule 4 of the Code, that is, the question of the defendant having failed to appear and contested the suit at the hearing, would only arise in the event the deceased defendant had filed written statement. Since in the present case, defendant no. 2, since deceased, had not file any written statement at all, there arose no question of the said defendant or his heirs appearing and contesting the suit at the hearing.

12. In such view of the matter, Rule 7 of Order IX of the Code would not be applicable, as the said rule could be invoked only at the stage of hearing of the suit ex parte.

13. Moreover, it is well-settled that the court can invoke Order XXII Rule 4(4) of the Code even at a stage after the expiry of the statutory period for substitution of the deceased defendant, upon the suit having abated in respect of the said defendant.

14. As such, the trial court did not commit any jurisdictional error in passing the impugned order.

15. Accordingly, C. O. No. 254 of 2019 is dismissed without any order as to costs.

16. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.