# Kamleshwar Shahi v. Dr. Ajay Shankar & Ors

- **Citation:** (2025) 7 ILRA 897
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-28
- **Case number:** Matters Under Article 227 No. 3939 of 2021
- **Bench:** Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamleshwar-shahi-v-dr-ajay-shankar-ors-54643
- **Pages:** 6

## Headnote

Whether under Order XXII Rule 4(4) of
the Code of Civil Procedure, 1908, the
court may exempt the plaintiff from
substituting the legal representatives of a
deceased defendant who did not contest
the suit, even if the application seeking
such exemption is filed after the expiry of
the prescribed period of ninety days.

Headnotes
Code of Civil Procedure, 1908 - O.22
r.4(4)
-
Substitution
of
legal
representatives
-
Non-contesting
defendant - Exemption from substitution
- Power of court - Limitation of ninety
days - Applicability - Abatement -
Legislative intent - Interpretation of
"whenever the court thinks fit"

HELD:
Sub-rule (4) of Rule 4 of Order XXII C.P.C.-
enacted
to
remedy
procedural
delays
in
substitution-empowering
courts
to
exempt
plaintiffs from substituting legal representatives
of defendants who neither filed a written
statement nor contested the suit-legislative
object
is
to
prevent
abatement
-avoid
unnecessary delay in disposal of cases. [Paras
6-7]

Words "whenever the court thinks fit" in subrule (4)-confer a discretionary power not
limited by the period prescribed for substitutionprovision
does
not
require-application
for
exemption be filed within ninety days from the
death of the defendant-to hold otherwise would
defeat the legislative intent and render the
remedial nature of the amendment nugatory.
[Paras 11, 13-15]

Plaintiff
had
already
filed
a
substitution
application within the prescribed period-there
was
no
abatement
of
appeal-subsequent
application seeking exemption under Order XXII
Rule 4(4) C.P.C. was rightly maintainable-
appellate court's rejection of the exemption
application
was
erroneous-ignored
the
legislative intent of sub-rule (4) - procedural
safeguard meant to expedite justice-Order of
appellate
court
set
aside
-
Exemption
application allowed - Petition allowed. [Paras
12, 16, 17, and 18] (E-14)

Case Law Cited
Rameshwar Prasad v. State of U.P., AIR
1983 SC 383 - applied; Sankri Prasad
Singhdeo v. Kanailal Rao, (1948) 52 Cal
898 INDIAN LAW REPORTS ALLAHABAD SERIES
WN 599 - dissented from; Nani Gopal v.
Panchanan, (1955) 59 Cal WN 304 -
dissented
from;
Laxmi
Charan
v.
Satyabadi, AIR 1964 Ori 39 - dissented
from; S.A. Raheem v. Rajamma, AIR 1977
Kant 20 - followed; Nepal Chand Saha v.
Rebati Mohan Saha, AIR 1979 Gauh 1 -
followed; Rai Nath Sahgal v. Shiva Prasad
Sinha, AIR 1979 Pat 239 - followed;
Velappan Pillai v. Parappan, AIR 1969 Mad
309 - relied on.

List of Acts / Statutes
Code of Civil Procedure, 1908

List of Keywords
Civil procedure; Substitution of legal representatives;
Non-contesting
defendant;
Exemption
from
substitution;
Abatement;
Legislative
intent;
"Whenever the court thinks fit"; Discretionary power;
Delay;
Interpretation
of
remedial
provisions;
Procedural justice; Judicial discretion.

Case Arising From
Petition under Article 227 of the Constitution of India
challenging the order dated 10 March 2021 passed by
the Appellate Court in Civil Appeal No. 30 of 2012,
rejecting petitioner's application (Paper No. 55Ka-2)
seeking amendment of substitution application (Paper
No. 37Ka-2) and exemption from substituting the
heirs of deceased respondent no. 3 under Order XXII
Rule 4(4) C.P.C.

Appearance for Parties

For the Petitioner : Shri Chandra Shekhar
Agnihotri

For the Respondents : Shri Anshu Chaudhary.

## Text

7 All. Kamleshwar Shahi Vs. Dr. Ajay Shankar & Ors.
897
12. It is further provided that
Rs.50,000/-
deposited
before
the
mediation and conciliation centre of
this Court shall be released and paid
to
the
respondent
no.2
on
an
application moved by her giving the
details of her account, which shall be
transferred in her account through
RTGS after verification. The said
amount shall be adjusted towards the
amount of maintenance fixed by the
Family Court.

13.It is further provided that
out
of
the
aforesaid
cost
of
Rs.1,00,000/-, Rs.90,000/- shall also
be paid to the respondent no.2, which
shall be transferred in her account by
the aforesaid mode on her application.
14. The aforesaid amounts shall
be transferred within two weeks of
moving application.
----------
(2025) 7 ILRA 897
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.07.2025
BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Matters Under Article 227 No. 3939 of 2021

Kamleshwar Shahi ...Petitioner
Versus
Dr. Ajay Shankar & Ors. ...Respondents

Counsel for the Petitioner:
Chandra Shekhar Agnihotri

Counsel for the Respondents:
Anshu Chaudhary

Issue for Consideration
Whether under Order XXII Rule 4(4) of
the Code of Civil Procedure, 1908, the
court may exempt the plaintiff from
substituting the legal representatives of a
deceased defendant who did not contest
the suit, even if the application seeking
such exemption is filed after the expiry of
the prescribed period of ninety days.

Headnotes
Code of Civil Procedure, 1908 - O.22
r.4(4)
-
Substitution
of
legal
representatives
-
Non-contesting
defendant - Exemption from substitution
- Power of court - Limitation of ninety
days - Applicability - Abatement -
Legislative intent - Interpretation of
"whenever the court thinks fit"

HELD:
Sub-rule (4) of Rule 4 of Order XXII C.P.C.-
enacted
to
remedy
procedural
delays
in
substitution-empowering
courts
to
exempt
plaintiffs from substituting legal representatives
of defendants who neither filed a written
statement nor contested the suit-legislative
object
is
to
prevent
abatement
-avoid
unnecessary delay in disposal of cases. [Paras
6-7]

Words "whenever the court thinks fit" in subrule (4)-confer a discretionary power not
limited by the period prescribed for substitutionprovision
does
not
require-application
for
exemption be filed within ninety days from the
death of the defendant-to hold otherwise would
defeat the legislative intent and render the
remedial nature of the amendment nugatory.
[Paras 11, 13-15]

Plaintiff
had
already
filed
a
substitution
application within the prescribed period-there
was
no
abatement
of
appeal-subsequent
application seeking exemption under Order XXII
Rule 4(4) C.P.C. was rightly maintainable-
appellate court's rejection of the exemption
application
was
erroneous-ignored
the
legislative intent of sub-rule (4) - procedural
safeguard meant to expedite justice-Order of
appellate
court
set
aside
-
Exemption
application allowed - Petition allowed. [Paras
12, 16, 17, and 18] (E-14)

Case Law Cited
Rameshwar Prasad v. State of U.P., AIR
1983 SC 383 - applied; Sankri Prasad
Singhdeo v. Kanailal Rao, (1948) 52 Cal
898 INDIAN LAW REPORTS ALLAHABAD SERIES
WN 599 - dissented from; Nani Gopal v.
Panchanan, (1955) 59 Cal WN 304 -
dissented
from;
Laxmi
Charan
v.
Satyabadi, AIR 1964 Ori 39 - dissented
from; S.A. Raheem v. Rajamma, AIR 1977
Kant 20 - followed; Nepal Chand Saha v.
Rebati Mohan Saha, AIR 1979 Gauh 1 -
followed; Rai Nath Sahgal v. Shiva Prasad
Sinha, AIR 1979 Pat 239 - followed;
Velappan Pillai v. Parappan, AIR 1969 Mad
309 - relied on.

List of Acts / Statutes
Code of Civil Procedure, 1908

List of Keywords
Civil procedure; Substitution of legal representatives;
Non-contesting
defendant;
Exemption
from
substitution;
Abatement;
Legislative
intent;
"Whenever the court thinks fit"; Discretionary power;
Delay;
Interpretation
of
remedial
provisions;
Procedural justice; Judicial discretion.

Case Arising From
Petition under Article 227 of the Constitution of India
challenging the order dated 10 March 2021 passed by
the Appellate Court in Civil Appeal No. 30 of 2012,
rejecting petitioner's application (Paper No. 55Ka-2)
seeking amendment of substitution application (Paper
No. 37Ka-2) and exemption from substituting the
heirs of deceased respondent no. 3 under Order XXII
Rule 4(4) C.P.C.

Appearance for Parties

For the Petitioner : Shri Chandra Shekhar
Agnihotri

For the Respondents : Shri Anshu Chaudhary.

(Delivered by Hon'ble Manish Kumar Nigam,
J.)

1. Heard learned counsel for the parties
and perused the record.

2. This writ petition has been filed
challenging the order dated 10.03.2021 passed
by the appellate court rejecting the application
(paper 55 ka-2) filed by the petitioner seeking
amendment in the substitution application paper
No. 37 Ka-2 filed for substituting the heirs of
defendant/respondent no. 3 who died during
pendency of the appeal.

3. Brief facts of the case are that original
suit no. 89 of 1968 was filed by the petitioner
for the relief that compromise petition filed in
Supreme Court in Civil Appeal No. 375 of
1957 which was recorded by the court on
19.05.1958 and incorporated in a decree of the
said appeal, so far as it purported to convey the
property described in a schedule-IV to Shri
Bhagwati declaring illegal void and not binding
on the plaintiff. In the aforesaid suit one Gauri
Shankar Sahi was added as defendant no. 3
who was substituted after his death by
Bhuvneshwar Prasad Sahi. The said suit was
dismissed by judgment and decree dated
07.05.2012. Against the judgement and decree
passed in the suit, first appeal being appeal No.
30 of 2012 was filed by the plaintiff. During the
pendency of the appeal Bhuvneshwar Prasad
Shahi respondent no. 3 died on 26.10.2018.
Petitioner/appellant filed an application for
substituting
the
heirs
of
deceased
defendant/respondent no. 3 being paper no.
37Ka-2. Later on petitioner/appellant filed an
application Paper No. 55 Ka-2 for amendment
in the substitution application praying for
relieving the petitioner/appellant from necessity
of substituting the legal representative of
deceased defendant/respondent no. 3 in view of
Sub-rule (4) of Rule 4 of Order 22 C.P.C.
Application Paper No. 55 Ka-2 has been
rejected by the appellate court, hence, the
present petition.

4. It has been contended by learned
counsel for the petitioner that Shri Gauri
Shankar Sahi, defendant no. 3 never contested
the suit and has not filed written statement
during the pendency of the suit. After his
death, Bhuvneshwar Prasad Sahi was
substituted in his place who happens to be
son of Gauri Shankar Sahi during the
7 All. Kamleshwar Shahi Vs. Dr. Ajay Shankar & Ors.
899
pendency of the suit. Bhuveneshwar Prasad
Sahi too have not filed any written
statement or contested the suit. Therefore,
the
petitioner/appellant
prayed
that
petitioner appellant be exempted from
substituting
the
heirs
of
deceased
respondent no. 3 Bhuvneshwar Prasad Sahi.
It has been further contended by learned
counsel for the petitioner that no relief in
the suit was claimed against defendant no.
3.

5. Shri Anshul Chowdhary, learned
counsel appearing for respondent nos. 1 &
2 submitted that no error has been
committed by the appellate court in
rejecting the application for amendment
moved by the petitioner for amending the
substitution
application
filed
for
substituting
the
heirs
of
deceased
defendant/respondent no. 3. It has been
further submitted that once the substitution
application has been filed for substituting
the heirs of deceased defendant/respondent no.
3, there is no occasion for the petitioner/appellant
to file an application for being relieved from
substituting
the
heirs
of
deceased
defendant/respondent no. 3 under Sub-rule (4) of
Rule 4 of Order 22 C.P.C. It has been further
submitted by learned counsel for the respondents
that deceased defendant/respondent no. 3 died on
26.10.2018 and the present application, purported
to be under Sub-rule (4) of Rule 4 of Order 22
C.P.C. was filed on 05.01.2021. In case,
application
was
to
be
filed
by
the
petitioner/appellant for seeking exemption under
Sub-rule (4) of Rule 4 of Order 22 C.P.C., the
same should have been filed within time within
which the application for substitution could be
filed and the same cannot be entertained after
expiry of the aforesaid period.

6. Before considering the rival submissions
of the learned counsel for the parties, it will be
appropriate to look into the provisions of Order 22
Rule 4 C.P.C. which are quoted as under:

"4. Procedure in case of death of one
of several defendants or of sole defendant.

(1) .......

(2) .......

(3) .......

(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 not withstanding the
death of such defendant and shall have the same
force and effect as if it has been pronounced
before death took place.

(5) ......."

6. 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 CPC 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:
900 INDIAN LAW REPORTS ALLAHABAD SERIES

"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."

7. The background which led to the
insertion of sub-r. (4) of O. 22 is based on
the recommendation of the aforesaid
Committee. The intention of insertion is
clear from the recommendations made by
the Joint Committee. This was done with a
view to curtail waste of unnecessary time.
Court has, therefore, to keep the intention
of
the
Legislature
in
mind
while
interpreting sub-r. (4) of O. 22 R. 4 CPC. It
is now well established that intention of
legislature, including the recommendations
of the Joint Select Committee, can be
considered and looked into for interpreting
a legislation.

8. In Rameshwar Prasad v. State of
U.P., AIR 1983 SC 383, the view taken by
the Supreme Court was that whenever a
court is called upon to interpret an amended
provision, it has to bear in mind the history
of the provision, the mischief which the
legislature
attempted
to
remedy,
the
remedy provided by the amendment and
the reason for providing such remedy.

9. So far as the contention raised by
learned counsel appearing for respondents
that power of exemption conferred by Subrule (4) of Rule 4 of Order 22 C.P.C. can be
invoked only in those cases where the
application for the said purpose has been
made under the provisions of sub-rule (4)
within 90 days. According to him, once a
suit is abated, the court has no power under
the aforesaid rule to exempt. It has been
further argued that abatement of suit, is not
by filing an application for abatement but
abatement is automatic and on such
automatic abatement, coming into existence
there is noting before the court, so far as
the deceased defendant is concerned, in
which any order for exemption under Subrule (4) or another order could be possibly
made. It has also been contended that this
application has been filed after a lapse of
about 3 years from the date of death of
deceased defendant/respondent. Hence, the
court below has rightly rejected the
application
for
amendment
in
the
substitution application seeking exemption
which was in fact an application for
seeking exemption under Sub-rule (4) of
Rule 4 of Order 22 C.P.C.

10. In support of his submission,
learned counsel for the respondents relied
upon the judgment in case of Sankri
Prasad Singhdeo v. Kanailal Rao, (1948)
52 Cal WN 599, Nani Gopal v.
Panchanan (1955) 59 Cal WN 304, and
Laxmi Charan v. Satyabadi, AIR 1964
Orrisa 39. In all of these cases, the view
taken was that the words "Whenever the
Court thinks fit" in the context must mean
that the court sees fit within 90 days from
the date of death and before abatement
takes place.

11.
These
authorities,
no
doubt
support the petitioner contentions. Two
courses are open to the plaintiff either to
make an application for substitution or to
file an application invoking the courts
power of exempting from the necessity of
substituting the legal heirs of the deceased
defendant/respondent. If either of the two
things are not done, the irresistible
conclusion would be that the suit stands
abated as against the deceased defendant.
In the facts of the present case, an
7 All. Kamleshwar Shahi Vs. Dr. Ajay Shankar & Ors.
901
application for substituting was filed by the
petitioner/appellant on 05.01.2019, for
substituting
the
heirs
of
defendant/respondent no. 3 who died on
26.10.2018, which was well in time. After
filing the substitution application, the
petitioner/appellant moved the present
application for exemption on 25.01.2021 by
seeking amendment in the substitution
application.

12. In the facts of the present case,
there cannot be any abatement in the appeal
as the application for substitution was
already filed and by the subsequent
application, petitioner/appellant has sought
exemption from substituting the heirs of
deceased defendant/respondent no. 3, thus,
in my view, contention of the learned
counsel for the respondent is of no avail.

13. Apart from the factual position in
the present case, mentioned above, I am not
persuaded to agree with the view taken in
case of Sankri Prasad Singhdeo v. Kanailal
Rao (Supra), Nani Gopal v. Panchanan
(Supra) and Laxmi Charan v. Satyabadi
(Supra). The intention behind the sub-r. (4)
of R. 4 of O. 22 is that a plaintiff need not
be asked to file an application for bringing
on record the heirs of the deceased when he
has not taken any interest in the suit. That
intention could not be fructified if the suit
is abated on the application for exemption
not being made within 90 days. The
expression used in sub-r. (4) is, "whenever
it thinks fit". The word "whenever" means at
whatever time or at what time so ever. To accept
the interpretation put forward by the petitioners'
learned counsel would result in ignoring that
expression altogether. The power to exempt is not
inhibited by the condition that the application for
the said purpose must have been moved within 90
days. The exemption given by sub-r. (4) of O. 22,
R. 4 relieves the plaintiff from the liability of
moving a substitution application. It is a maxim of
law that words of exemption are not to be
construed to import any liability. The exemption
granted excuses the plaintiff from the performance
of duty. Accordingly, to me it appears that moving
of application within 90 days is not at all
necessary, as was argued by the learned counsel
for respondent.

14. Dissenting with the view taken by the
Orissa and Calcutta High Courts the Karnataka
High Court held in S.A Raheem v. Rajamma
(AIR 1977 Kant 20), that exemption application
is not required to be filed within 90 days of death.
To the same effect is the view of Gauhati and
Patna High Courts in Nepal Chand Saha v.
Rebati Mohan Saha (AIR 1979 Gauhati 1) and
Rai Nath Sahgal v. Shiva Prasad Sinha (AIR
1979 Pat 239). In Nepal Chand Saha's case
(Supra), strong reliance had been placed by the
learned Judge on a decision of the Madras High
Court reported in Velappan Pillai v. Parappan
(AIR 1969 Mad 309). In this decision, the
controversy in issue has been considered in great
detail. I am in respectful agreement with the view
taken by the Madras High Court.

15. A legal action on the death of a party to a
suit passes into a state of suspense which itself
passes into a state of abatement, if the legal
representatives are not brought within time. But in
a case where there is no need of moving a
substitution application for bringing on record the
heirs and legal representatives of a
defendant who had not filed his written
statement or contested the suit, the said
position would not emerge. Not bringing on
record his legal representatives would not
result in the abatement of the suit as the law
now does not contemplate the same.

16. In the present case, since the
application for substitution was already
filed by the petitioner/appellant within
902 INDIAN LAW REPORTS ALLAHABAD SERIES
time, there was no question of appeal being
abated.

17. I am of the view that the court
below
has
erroneously
rejected
the
application filed by the appellant and the
same is liable to be set-aside.

18. In view of the above, the order
dated 10.03.2021 passed by the appellate
court rejecting the application (paper 55ka2), in Civil Appeal No. 30 of 2012, is
hereby set-aside and the application (paper
55Ka-2) filed by the petitioner/appellant
seeking amendment, is allowed.

19. Accordingly, the writ petition is
allowed.
----------
(2025) 7 ILRA 902
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.07.2025

BEFORE

THE HON'BLE JASPTREET SINGH, J.

Civil Misc. Arbitration Application No. 2 of 2024

Devi Prasad Mishra ...Applicant
Versus
M/S Nayara Energy Limited (Earlier Essar
Oil Limited) ...Respondent

Counsel for the Applicant:
Girish Chandra Sinha, Dhirendra Singh,
Manish Mehrotra, Mayank Sinha

Counsel for the Respondent:
Kumar Ayush

Issue for Consideration
Whether, in a petition under Section 11(6)
of the Arbitration and Conciliation Act,
1996, for appointment of an arbitrator,
the bench of High Court at Lucknow has
jurisdiction to entertain the application
when the arbitration clause provides that
the proceedings "shall be held in Mumbai"
and the agreement also contains an
exclusive-jurisdiction
clause
conferring
jurisdiction on the Courts at Mumbai only.

Headnotes
Arbitration and Conciliation Act, 1996 - s.
11(6); ss. 20(1)-(3); s. 42 - Jurisdiction
- Seat and Venue - Effect of exclusive
jurisdiction clause - When 'venue' is to be
treated as 'seat'

HELD:
Clauses 21 and 22 of the franchisee agreement-
read
together-
unambiguously
designate
Mumbai as the place where the arbitration
proceedings "shall be held"- the agreement
"shall be subject to the exclusive jurisdiction of
Courts at Mumbai only"-once a seat of
arbitration is fixed, the Courts of that seat alone
have supervisory jurisdiction over the arbitral
proceedings to the exclusion of all others. [Paras
16-18, 24-26]

Applying the test in B.G.S. S.G.S. Soma JV v.
NHPC Ltd., (2020) 4 SCC 234, and approved in
Arif Azeem Co. Ltd. v. Micromax Informatics
FZE, 2024 SCC OnLine SC 3212-where the
agreement mentions only one place- no contrary
indication-that place becomes the juridical seat
even if termed as 'venue'- Hence, 'Mumbai',
being the only place specified, constitutes the
seat of arbitration. [Paras 24-26]

Petition was therefore not maintainable before
the Allahabad High Court (Lucknow Bench)-
Dismissed with liberty to the petitioner to
approach the competent Court at Mumbai. [Para
29] (E-14)

Case Law Cited
Indus Mobile Distribution (P) Ltd. v.
Datawind Innovations (P) Ltd., (2017) 7
SCC 678 - relied on; B.G.S. S.G.S. Soma
JV v. NHPC Ltd., (2020) 4 SCC 234 -
followed; Brahmani River Pellets Ltd. v.
Kamachi Industries Ltd., (2020) 5 SCC 462
- applied; Arif Azeem Co. Ltd. v. Micromax
Informatics FZE, 2024 SCC OnLine SC
3212 - approved; State of W.B. v.
Associated Contractors, (2015) 1 SCC 32
-
distinguished;
Aarka
Sports