JUDGMENT
Sudhir Ranjan Roy, J.
1. This appeal by the plaintiff who has had a mixed fortune so far, viz., successful termination of the suit before me learned trial court and then dismissal of the suit on appeal by the centering defendants, raises a very short but interesting question.
2. The question involved is whether in a suit against a person who dies before the institution of the suit, his legal heirs and representatives can be subsequently brought on record on discovery of the fact of his death.
3. The plaintiffs suit which is for the setting aside of the ex parte decree passed against her in Title Suit No. 221 of 1957 and for recovery of possession and other reliefs, is based on the following facts:
Abdur Rahaman, the plaintiff’s father was a thika tenant under the defendants Nos. 1 and 2 in respect of the properties in suit. He died on Nov. 11, 1954 at Dacca leaving the plaintiff and the pro forma defendants Nos. 3 to 5 as his legal heirs. About long three years after his death, the defendants 1 and 2 filed a suit for eviction against him being Title Suit No. 221 of 1957 where his brothers, the pro forma defendants Nos. 6 and 7 were unnecessarily made parties since they had no interest in the suit properties. Subsequently the name of Abdur Rahaman was expunged and the plaintiff and his other legal heirs were added as parties in his place. Thereafter, by suppression of summons the defendants Nos. 1 and 2 obtained an ex parte decree in that suit.
4. Besides giving a denial to all the material allegations contained in the plaint, the defendants 1 and 2 also alleged that they had taken actual physical possession of the properties in suit in execution of the decree.
5. The learned Munsif having decreed the suit in part on both the counts, viz., filing the suit against a dead person and suppression of summons on the plaintiff, the defendants 1 and 2 moved up in appeal being Title Appeal No. 420 of 1962 and the learned lower appellate court mainly on the ground that there was no fraudulent suppression of summons upon the plaintiff, allowed the appeal, set aside the judgment and decree of the learned Munsif and dismissed the suit.
6. Hence the instant appeal by the plaintiff before this Court.
7. The respondents did not appear to
contest.
8. Appearing on behalf of the appellant it was frankly conceded by Mr. Ali, the learned Advocate, that the materials on record were not sufficient to prove fraudulent suppression of summons upon the plaintiff. He, however, stuck to the point that Abdur Rahaman having died before the institution of the suit there was absolutely no scope for bringing his legal heirs on record and the suit ought to have failed on the ground that it was brought against a dead person.
9. Certain relevant facts may be stated in this connection for proper appreciation of the legal question involved. It is not disputed that Abdur Rahaman died before Title Suit No. 221 of 1957 was instituted on Sept. 17, 1957. The plaintiff produced his death certificate to show that he died at Dacca on Nov. 11, 1954, i.e., about three years before the institution of the suit.
10. Significantly, Abdur Rahaman was not the sole defendant in the suit. His two brothers (the pro forma defendant-respondents Nos. 6 and 7 here) were made defendants Nos. 2 and 3 on the allegation that they were claiming joint tenancy in the suit properties along with the defendant No. 1 Abdur Rahaman, though on records, the defendant No. 1 Abdur Rahaman was the sole tenant under the landlords.
11. The records show that on Nov. 13, 1958, the plaintiff in Title Suit No. 221 of 1957 (the defendant-respondents Nos. 1 and 2 here; filed a petition under Order 1 Rule 10 read with Section 151 of the C.P.C. for addition of the legal heirs of the defendant No. 1 Abdur Rahaman in his place on the ground that the defendant No. 3 had disclosed on July 22, 1958 that the defendant No. 1 Abdur Rahaman had died before the institution of the suit.
12. This prayer was allowed by the court’s order dt. Nov. 20, 1958 and the present plaintiff and other heirs of Abdur Rahaman were added as party defendants. Subsequently the suit was decreed ex parte against all the defendants including the present plaintiff, a daughter of Abdur Rahaman.
13. As already stated, the plaintiff filed the instant suit for setting aside of the ex parte decree mainly on the ground of non-service of summons on her, but any fraud in the matter of the said suppression not having been proved, Mr. Ali in his fairness did not press that point before me.
14. However, the fact remaining that Abdur Rahaman died before the institution of the suit, it was strongly contended by Mr. Ali that the suit should have failed on that ground alone and it was not maintainable against his legal heirs including the plaintiff. In support of this contention reliance was placed on the single Bench decision of this Court in Sudhir Kumar De v. Amritlal Seal, (1946) 50 Cal WN 801.
15. Now, so far as the instant case is concerned, it should be remembered that Title Suit No. 221 of 1957 was instituted against three persons as joint tenants, viz., Abdur Rahaman as defendant No. 1 and his two brothers as defendants Nos. 2 and 3. There is no indication that the defendants Nos. 2 and 3 in that suit ever asked for the expunction of their names on the ground that they were unnecessary parties having no interest in the suit properties or in the tenancy. No such prayer was also made by any one of the legal heirs of Abdur Rahaman after they were brought on record. The ex parte decree was accordingly passed against all the defendants including the added defendants, the heirs of Abdur Rahaman. And that being so, there can absolutely be no scope now in the present suit to enter into the controversy whether the brothers of Abdur Rahaman were unnecessary parties to the suit or not.
16. Thus, factually the previous suit being Title Suit No. 221 of 1957 was for eviction against three joint tenants, one of whom having subsequently been found to have died before the institution of the suit, his name was expunged under Order 1 Rule 10 and under the same rule his legal heirs were added as party defendants.
17. The facts in Sudhir Kumar v. Amritlal, (1946) 50 Cal WN 801 (supra) were almost similar with the material difference that at the instance of the plaintiffs the names of the other two brothers of the deceased were expunged on the ground that they were unnecessary parties, implying thereby that the suit was against a solitary defendant. In such circumstances, it was found by the learned court that when a suit is instituted against a person who is dead at the date of the institution of the suit, the court has no jurisdiction to substitute the heirs of such a deceased person under Order 22 Rule 10 of the Civil P.C. and proceed with the suit as against such heirs.
18. Significantly, the point for consideration in that case was whether in such cases substitution of the legal heirs could be made under Order 22 P. 10 of the Code. There it did not come up for consideration whether in the case of a suit against joint tenants, the legal heirs of one subsequently discovered to have died before the institution of the suit, could be added as party defendants under Order 1 Rule 10 of the Code.
19. Rule 10 of Order 1 of the Code provides for two different powers of the com t. The first gives the court the power to strike out the name of any party improperly joined and the second provides for the addition of a party where it appears to the court that such person ought to have been joined.
20. In the case under consideration the name of Abdur Rahaman was expunged as it was discovered that he had died before the institution of the suit. Being a joint tenancy it was necessary to add his legal heirs as parties so that the tenancy could be fully represented. However, had Abdur Rahaman been the sole defendant, the matter would have been different because in that case there would have been no question of joining or adding his legal heirs.
21. In the Bench decision of this Court in Sisir Kumar v. Manindra Kumar, it has been observed that the words ‘joined’ and ‘added’ used in Rule 10 of Order 1 of the Code are significant and 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.
22. Indirectly, therefore, no question of substitution or even addition of the legal heirs would arise when the sole defendant against whom the suit is filed was not surviving on the date of its institution.
23. In C. Muttu v. Bharat Match Works, AIR 1964 Mys 293 the suit was filed against a
solitary defendant who had died before the institution of the suit and it was held that the suit was a nullity and substitution of his legal heirs could not be allowed.
24. Identical views seem to have been taken in Joginder Singh v. Krishan Lal, .
25. In Khaja Begum v. Gulam Mohiuddin, it was, however, held that a money suit against a dead sole defendant was not void ab initio and could be continued against his legal representatives.
26. In case this last view is accepted, there is absolutely no problem. At any event, Abdur Rahaman father of the plaintiff not being the sole defendant but only one of the joint tenants according to the case made out by the plaintiffs in Title Suit No. 221 of 1957, addition of his legal heirs under Order 1 Rule 10(2) after expunging his name, in my judgment, was not bad in law. Incidentally no question of limitation did either arise or was pleaded.
27. As already seen, an ex parte decree was passed in the said suit being Title Suit No. 221 of 1957 against the defendants including present plaintiff. The plaintiff instead of taking recourse to Order 9 Rule 13 of the Code filed the instant suit for setting aside the ex parte decree but failed to prove fraudulent suppression of summons on her.
28. In the above view of the matter, the learned lower appellate court was quite justified in allowing the appeal preferred by the defendants Nos. 1 and 2 and in dismissing the suit.
29. This appeal having no merits in it, therefore, fails and is dismissed and the judgment and decree of the learned lower appellate court passed in Title Appeal No. 420 of 1962 are hereby affirmed.
30. There will be no order for costs.
31. No formal decree need be drawn up.
32. The records be now remitted to the learned trial court along with a copy of this judgment as expeditiously as possible.
