If he (defendant) dies before the suit and a suit is brought against him in the name in which he carried on business, the suit is against a dead man and it is a nullity from its inception. The suit being a nullity, the writ of summons, issued in the suit by whomsoever accepted is also a nullity. Similarly, any order made, in the suit allowing amendment of the plaint by substituting the legal representative of the deceased as defendant and allowing the suit to proceed against him is also a nullity. It is immaterial that the suit was brought bona fide and in ignorance of the death of such person
Karnataka High Court
C. Muttu v. Bharath Match Works on 7 August, 1963
Equivalent citations: AIR 1964 Kant 293, AIR 1964 Mys 293
Bench: N S Rau, H H Gowda
1. This Revision petition which is directed against the order of the II Addl. Subordinate Judge, South Kanara, Mangalore, in Small cause suit No, 163 of 1958 dismissing the suit with costs, has been referred to a Division Bench by one of us, as it raises' an important question, whether a suit brought against a person who is later discovered to have been dead at the time the suit was filed can be amended by substituting another person as defendant,
2. The petitioner filed a suit against one P. K. Periaswamy Nadar, Proprietor, Bharatn Match Works, Sivakasi, on 31-7-1958, for recovery of the sum of Rs. 974-49 nP. with future interest and costs, in the Court of the II Addl. Subordinate Judge, South Kanara, Mangalore. Subsequently it was found that F. K. Periaswamy Nadar, the defendant, had died on 1-6-1958, that is, long prior to the date of the filing of the suit. The petitioner, therefore made an application under Order XXII Rule 4 and Sec. 151 of the C. P. C. on 19-9-1958 and prayed for permission to amend the plaint by deleting the name of P. K. Periasswamy Nadar and substituting the name of S. Than gamani Ammal in the cause title of the plaint and to amend the second paragraph of the plaint Suit-ably as a consequence this amendment.
The learned Subordinate Judge allowed the application and permitted the plaint to be amended. Thangamani Ammal was thus brought on record as defendant in the suit and was served with gammons. She filed her written statement raising several contentions against the claim of the petitioner. She inter alia contended that P. K. Periaswamy Nadar, the sole defendant against whom the suit was originally instituted, had died on 1-6-1958 and that the suit filed against him on 31-7-1958 was a suit filed against a dead person and was a nullity and, therefore, no amendment of the plaint could have been allowed permitting the plaintiff-petitioner to implead her as the defendant in the place of P. K. Periaswamy Nadar. She contended that the suit was liable to be dismissed in limine.
3. The fact that P. K. Periaswamy Nadar had died on 1-6-1958, that is, long before the suit was filed against him, was not disputed by the respondent. The certified extract from the register of deaths in the Municipality of Shivakasi during the month of June 1958 relating to the date of death of P. K. Periaswamy Nadat was produced and marked as an exhibit in the case. The learned Subordinate Judge heard the parties on the preliminary point regarding the maintainability of the suit against the respondent. After examining the decisions of the several High Courts cited before him, the learned Subordinate Judge held that the suit filed by the petitioner, on 31-7-1958, against the sole defendant P. K. Periaswamy Nadar who had died on 1-6-1958 was a nullity and no application for substitution of the respondent in place of the original sole defendant, could have been allowed and the suit was, therefore, liable to be dismissed. He accordingly dismissed the suit with costs. It is the correctness of this order that is challenged in this revision petition.
4. The short point for decision is whether the suit filed by the petitioner on 31-7-1958 against P. K. Periaswamy Nadar who had died on 1.6.1958 was a nullity and whether the order permitting the petitioner to substitute the respondent in place of the original defendant is without jurisdiction. It is urged by Sri Padubidri Raghavendra Rao, the learned counsel for the petitioner, that the petitioner's application filed under Order XXII Rule 4 and Section 151 of the C. P. C. was for permission to amend the plaint by deleting the name of P. K. Periaswamy Nadar and substituting the name of the respondent in his place, is clearly maintainable though the original defendant was dead at the time the suit against him was instituted. A number of decisions of 'several High Courts were cited before us on the point. On a review of them, we are of the opinion that there is no room for doubt, that the application of the type presented by the petitioner for deleting the name of P. K. Periaswamy Nadar, who was not alive on the date the suit was instituted and for substitution of the name of the respondent in his place, is not maintainable. The decisions lay down that the question as to whether there was a bona fide mistake or ignorance on the part of the plaintiff is foreign to the suit and that no application for substitution of another person as defendant in the place of the defendant who was no more on the date the suit was instituted, as his legal representative on record can be permitted.
5. In Savitramma v. Nanjundappa, 25 Mys. LJ 113, a Division Bench of the former High Court of Mysore considered the very question raised in this revision petition. Venkataranga Iyengar, J. who delivered the judgment in the case, reviewed the case law on the. point and held that when a suit is brought against a person as a sole defendant and that person is found to have died before its institution, the suit is a nullity from its inception and the court has no jurisdiction to substitute as defendant the legal representative of the deceased and allow the suit to proceed against him either under Section 153 or under Order 1, Rule 10 (2) of the C. P. C. The facts of that case were exactly similar to the facts in the case before us. The plaintiff in the said suit had filed a suit against one Naranappa on the 5th of March 1945. It was subsequently found that Naranappa had died on 28th November 1944, that is, prior to the institution, of the suit. The application under Order XXII Rule 4 of the C. P. C. to bring on record Savitramma, the daughter of Naranappa, as his legal representative was made by the plaintiff. When Savitramma was served with the notice, she contended that her father had died on 28th November 1944, i. e. prior to the institution of the suit and the suit filed against a dead person was a nullity and was liable to be dismissed. The trial court rejected this contention and allowed the plaintiff to amend the plaint by substituting the name of Savitramma in place of Naranappa as defendant in the suit. Being aggrieved by this order, Savitramma filed the revision petition before the former High Court of Mysore. The revision petition was allowed and the order passed by the trial court was set aside. As already stated the court held that the suit filed against Naranappa who was dead prior to the presentation of the plaint, was a nullity and the court had no jurisdiction to allow the amendment prayed for.
6. In Mohun Chunder Koondoo v. Azeem Gazee Chowkeedar, 12 Suth W. R. 45 : 3 Beng LR AC 233 Sir Barnes Peacock C. J. who delivered the judgment of the Bench held that courts have no jurisdiction to decide the suit filed against a dead person and it is a nullity. This decision was followed by the Madras High Court in Veerappa. Chetty v. Tindal Ponnen, ILR 31 Mad 86 and observed in the Madras case as follows: --
"It does not appear to have ever been suggested that the issue of a writ against a dead man could be anything but a nullity, and we see no reason for regarding the presentation of a plaint, which under our system corresponds to the issue of the writ, as anything more".
This decision was followed by Sadasiva Aiyar and Napiet JJ. in re: Arunachalam Chettiar, 30 Ind Cas 679 : (AIR 1916 Mad 440) and by Srinivasa Aiyangar, J. in Rasa Goundan v. Pichamuthu Pillai, 42 Ind Cas 539 : (AIR 1918 Mad 794 (i)). The High Court of Bombay took the same view in Rampratab Brijmobandas v. Gowrishankar Kashiram 85 Ind Cas 464 : (AIR 1924 Bom 109). In that case Mulla J. observed thus:
"If he (defendant) dies before the suit and a suit is brought against him in the name in which he carried on business, the suit is against a dead man and it is a nullity from its inception. The suit being a nullity, the writ of summons, issued in the suit by whomsoever accepted is also a nullity. Similarly, any order made, in the suit allowing amendment of the plaint by substituting the legal representative of the deceased as defendant and allowing the suit to proceed against him is also a nullity. It is immaterial that the suit was brought bona fide and in ignorance of the death of such person".
In Bejoy Chand Mahatap Bahadur v. Amutya Charan Mitra 24 Ind Cas 112 : (AIR 1914 Cal 895) a Division Bench of the Calcutta High Court held that the provisions as to the substitution of the heirs of a deceased defendant as parties to the suit in his place apply only to cases where the original defendant was alive at the date of the institution of the suit. In Sisir Kumar v. Manindra Kumar Biswas, the Division Bench of the Calcutta High Court followed the above decision and K. C. Das Gupta J. (as he then was) who delivered the judgment observed as follows:--
"Sub-rule (2) of O. I Rule 10 is not limited to cases of bona fide mistake. For two parts of this sub-rule provide for two different powers of the court. The first gives the court the power to strike out the name of any party improperly joined as plaintiff or defendant. The second part provides for the addition of a party as the plaintiff or defendant where it appears to the court that such person 'ought to have been joined'. The use of the words 'joined' and 'added' is significant. Omission to use the word 'substituted' cannot but be considered deliberate. It must, therefore, be held that the power given to the Court under Sub-rule (2) of Rule 10 of Order 1 to add a party contemplates only those cases where there is somebody else as plaintiff or defendant and the effect of bringing on record another person as plaintiff or defendant would be really a case of 'addition' of plaintiff or defendant. A case of mere substitution as distinct from addition is not contemplated in Sub-rule (2). If the Court strikes out the names of the defendants and brings on the record the name of another person as sole defendant this will not be a case of addition at all. If there had been some other person on the record as defendant, even after the names of the original defendants were struck out, that would be a case of addition and might be allowed by the Court in proper circumstances."
A careful review of the decisions of the several High Courts relating to substitution of a defendant in a suit in place of the original defendant makes it clear, (i) that no such substitution can be permitted in a case where there was a sole defendant, (2) where there are more defendants than one and one of them was dead when the suit was filed, the Courts have held that the legal representatives of the deceased defendant can be brought on record subject to any question of limitation that may be raised by the legal representatives of the deceased person who were brought on record as the suit had been validly presented in so far as the living defendants are concerned, and (3) where an appeal is filed, against a person who was dead on the date of the presentation of the memorandum of appeal, the Courts have held that the appellant can be permitted to bring the legal representatives of the dead, person on record. In other words, the Courts have held that substitution is permissible. The principle on the basis of which the Courts have taken this view is that an appeal is a continuation of the original proceedings and as the suit had been validly instituted and the defendant died subsequently, an application to bring his legal representatives under Order XXII, Rule 4 is maintainable and the legal representatives can be brought on record. But in cases where there was a sole defendant and he was dead before the suit was instituted, all the High Courts have held that such a suit is a nullity and no application for amendment of the plaint by deleting the name of the original defendant and substituting another person in his place, can be permitted.
7. In Municipal Corporation of Karachi v. Baradiojumoo Mughal, AIR 1946 Sind 20 Thadani, after reviewing the decisions of the several High Courts dealing with this question, held that where a suit is filed against a dead person, a Court has no jurisdiction to grant an application under O. T. Rule 10, or under Order 22, Rules 4 and 9 or do any other act authorised by the Civil Procedure Code, as the suit filed against a dead person, is a nullity. His Lordship further held that bona fides or mala fides of the plaintiff are immaterial. There is no direct decision of the Supreme Court on the point., But some observations of the learned Chief Justice in Hira Lal v. Kalinath AIR 1963 SC 199 lend support to our view that a suit filed against a dead person is a nullity. This is what the learned Chief Justice says:
"The only ground on which the decision of the High Court is challenged is that the suit instituted on the original side of Bombay High Court was wholly incompetent for want of territorial jurisdiction and that therefore, the award that followed on the reference between the parties and the decree of the Court, under execution, were all null and void. Strong reliance was placed upon the decision of the Privy Council in the case of Ledgard v. Bull, 13 Jnd App 134 (PC). In our opinion, there is no substance in this contention. There was no inherent lack of jurisdiction in the Bombay High Court where the suit was instituted by the plaintiff-decree-holder. The plaint had been filed after obtaining the necessary leave of the High Court under Clause 12 of the Letters Patent. Whe-ther the leave obtained had been rightly obtained or wrongly obtained is not a matter which can be agitated at the execution stage. The validity of a decree can be challenged in execution proceed-ings only on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground Which could have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties, to it. But in the instant case there was no euch inherent lack of jurisdiction.' "
(Underlining (here into ' ') is ours.) It is thus clear that a suit filed by the petitioner against a dead person was a nullity and that the learned Subordinate Judge was perfectly justified in dismissing the spit on the ground that the respondent could not be substituted in the place of the Original defendant who was dead on the date of the presentation of the suit. We do not find any good ground to interfere with the order passed by the learned Subordinate Judge.
8. In the result, therefore, for the reasons
mentioned above, this revision petition fails and
the same is dismissed with costs.
9. Petition dismissed.
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