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Loganatha Mandiri vs Seshachala Naidu (Deceased) And … on 6 August, 1993

Madras High Court
Loganatha Mandiri vs Seshachala Naidu (Deceased) And … on 6 August, 1993
Equivalent citations: (1993) 2 MLJ 531
Author: Thanikkachalam


ORDER

Thanikkachalam, J.

1. This revision is directed against an order passed in I.A. No. 534 of 1982 in O.S. No. 79 of 1982. The plaintiff is the petitioner herein. The plaintiff filed a suit in O.S. No. 79 of 1982 to recover the amount of Rs. 2,100 due under a promissory note dated 19,1.1979. The suit was filed on 13.1.1982. According to the plaintiff, the defendant died on 30.1.1982. Therefore, he filed I.A. No. 534 of 1982 under Order 22, Rule 4 of the Civil Procedure Code to substitute the proposed parties 1 to 3 as legal representatives of the deceased first defendant and rank them as defendants 2 to 4. Chittoor Municipality issued a death certificate stating that the defendant died on 20.9.1981. The trial court pointed out that on the date of filing of the suit Seshachala Naidu was no more. Therefore, no suit can be filed against a dead person. The trial court pointed out that a suit filed against a dead person is a nullity. Reliance was placed upon a decision reported in C. Muttu v. Bharath Match Works A.I.R. 1964 Mysore 293, wherein the decision of the Supreme Court in Hiralal v. Kalinath was reiterated. Relying upon these decisions the trial court held that no amendment can be allowed for substitution of another person. In Order to come to this conclusion the trial court also relied on the decision of the Orissa High Court in Cuttack Municipality v. Shyamsundar Behra . Accordingly, the application filed to bring the legal representatives on record was dismissed by the trial court. It is against this order this revision is filed.

2. Learned Counsel for the petitioner submitted that the trial court failed to note that the application was filed to amend the cause title by adding the parties and the application was not filed to bring the legal representatives on record. The petitioner was under the bonafide impression that the defendant died on 30.1.1982 and therefore, the petitioner filed the petition to amend the cause title after his knowledge of the death of the sole defendant. The decisions relied on by the court below have no relevance to the facts of the present case. The court below has not properly understood the scope of the petition and erred in dismissing the petition on the ground that it is not maintainable. Learned Counsel for the petitioner further submitted that inasmuch as the petition was filed to amend the cause title after the death of the sole defendant, the application cannot be thrown out on the ground that the suit filed against a dead person is a nullity.

3. In order to support this contention, reliance was placed upon several decisions. On the other hand, nobody was present on behalf of the respondents.

4. I have heard the learned Counsel appearing for the petitioner and. perused the records carefully. The fact remains that the suit was filed by the plaintiff on a promissory note executed by the defendant on 19.1.1979. The suit was filed on 13.1.1982. The plaintiff came to know that the defendant died on 30.1.1982. Hence, he filed a petition under Order 22, Rule 4 of the Civil Procedure Code to substitute the legal representatives of the deceased defendant. In the suit, the death certificate of the defendant was produced and according to it, the date of death is given as 20.9.1981 and according to the plaintiff the parties are residing in a remote village and hence it is not possible for him to know about the death of the defendant immediately after the death has occurred. However, the trial court was of the view that the suit filed against a person who is dead is a nullity. A similar situation came up for consideration before a Division Bench of the Andhra Pradesh High Court in Khaja Begum v. Gulam Mohiddin , wherein while considering the provisions of Order 22, Rule 4 of the Civil Procedure Code the Andhra Pradesh High Court held as follows:

The section confers a general power to amend defects in a proceeding and so when a suit is filed against a dead person the plaint can be amended to substitute the legal representatives of the deceased. Therefore, when a money suit is filed against a dead sole defendant and the death is known only subsequently the suit is not void ab initio and can be continued against the legal representatives of the deceased if their substitution is made within the limitation period for the suit.

This decision was followed by the later decision of the Andhra Pradesh High Court in R. Rajyaiakshamma v. R. Kanniah . In both these decisions a reference was made to the decision of the Court rendered by Govinda Menon, J. in Ismail v. Pavunamma 68 L.W. 500. In Khaja Begum v, Gulam Mohiddin , while considering the decision of Govinda Menon, J. in 68 L.W. 500 observed as follows:

Justice Govinda Menon observed that the principles laid down in the Full Bench case apply to the facts of the case he was dealing with and that Section 153, C.P.C. in so many words speaks of an amendment by a court of first instance and this can be extended so far as the appellate court is concerned by the operation of Section 141, C.P.C. That being the case there is nothing that prevents the trial court from considering the plaint as if it was filed against the new parties on the date of the application for amendment was made.

5. Therefore, in view of the above said legal position the present suit filed by the plaintiff is entertainable and the amendment application filed for amending the cause title is also maintainable. But in the present case, it is to be seen whether the plaintiff has entertained a bonafide belief under Section 21 of the Limitation Act to overcome, the limitation in filing a petition under Order 22, Rule 4 of the Civil Procedure Code. This was not as certained by the court below. Without ascertaining this fact, it is not possible to decide the point arising out of the case one way or the other.

6. In such circumstances, I set aside the order passed by the lower court in I. A. No. 634 of 1982 in O.S. No. 79 of 1982 and remit back the application to the file of the trial court with a direction to ascertain the bonafide belief of the plaintiff in order to apply Section 21 of the Limitation Act and decide the question arising in the abovesaid interlocutory application after giving an opportunity of being heard to both the parties concerned. Accordingly, this revision is allowed. No costs.

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