ORDER
L. Narasimha Reddy, J.
1. These three revisions are filed by the plaintiff in O.S. No. 6821 of 1999 on the file of the Court of the IX Junior Civil Judge, City Civil Court, Hyderabad. All of them arise in the context of bringing the legal representatives of the deceased first defendant. For the sake of convenience, the parties shall be referred to, as arrayed in the suit.
2. The plaintiff is a chit fund company and the first defendant was one of its subscribers to a chit of the value of Rs. 1,00,000/- and duration of 50 months. In the auction conducted on 15-2-1998, the first defendant emerged as the prized subscriber, and accordingly, he was paid a sum of Rs. 55,000/-. By that time, he paid an amount of Rs. 34,0007- towards monthly instalments and for payment of the balance amount of Rs. 66,000/-, he executed a promissory note. Respondents 2 to 5 are said to be the sureties.
3. Alleging that the first defendant committed default from September 1998 onwards, the petitioner filed the suit on 26-11-1999. It is stated that the brother of the first defendant, by name Jayaram, who is shown as respondent No. 6, in these revisions appeared before the Court on 8-6-2000 and stated that the first defendant died on 27-7-1998.
4. The plaintiff filed LA. Nos. 700 and 701 of 2000 for setting aside the abatement on account of the death of the first defendant and to bring the sixth respondent herein on record as his legal representative. The applications were rejected on the ground that they were not accompanied by a petition to condone the delay. Aggrieved by the same, plaintiff filed CRP Nos. 5011 and 5012 of 2002. The C.R.Ps. were disposed of by this Court directing the Trial Court to consider the LA. afresh, leaving it open to the plaintiff to file an application under Section 5 of the Limitation Act. It was in this context that the plaintiff filed LA. No. 564 of 2003 under Section 5 of the Limitation Act to condone the delay in presenting LA. Nos. 700 and 701 of 2000.
5. On behalf of the plaintiff, it was pleaded that it came to know about the death of the first defendant only when he revealed the same in the Court on 8-6-2000, and soon thereafter steps were taken to bring the legal representatives on record, and that there was a delay of 737 days in presenting the application to set aside the abatement.
6. The proposed legal representative, the sixth respondent resisted the applications. He stated that the plaintiff was very much aware of the death of the first defendant, much before filing the suit, and in that view of the matter, the very institution of the suit by impleading the first defendant is irregular and impermissible. Through a common order dated 13-10-2003, the Trial Court took the view that the delay was not properly explained, and thereby dismissed all the three applications.
7. Sri A.K. Narasimha Rao, the learned Counsel for the plaintiff submits that his client took steps to bring the legal representatives of the deceased first defendant on record soon after his brother appeared and stated about the death. According to him, the time from the date of filing the applications LA. Nos. 700 and 701 of 2000 till the date of filing LA. No. 564 of 2004, requires to be condoned as the matter was being pursued, may be in a defective manner. It is also his contention that the view taken by the Trial Court that the delay was not properly explained, cannot be sustained.
8. The learned Counsel for the proposed legal representative, on the other hand, submits that the very filing of the suit against a dead person is impermissible. He contends that once the petitioner was aware of the death of the first defendant, much before filing the suit, the question of filing applications to bring his legal representatives on record at a later stage, does not arise.
9. Though the controversy arises mainly out of an application filed under Section 5 of the Limitation Act, the matter has further ramifications. If it is an ordinary case of an application being filed under Section 5 of the Limitation Act to condone the delay in filing the application to set aside the abatement caused on account of the death of the party, it has to be examined from the point of view of the knowledge of the death, the steps taken soon thereafter, the satisfactory nature of the explanation for the delay, etc. In such matters, the endeavour of the Court would be, mostly to continue the proceedings, by bringing the legal representatives on record, except where the abatement had resulted in complete extinction of the cause of action.
10. In the instant case, the death of the first defendant occurred much before the suit was filed. The question as to whether it is permissible to bring on record, the legal representatives of a defendant, who was not alive by the time the suit was filed, was dealt with on number of occasions by various Courts, varying from Court to Court.
11. The Orissa High Court in Cuttack Municipality v. Shyamsunder Behera, , took the view that a suit against dead person would be a nullity and it is impermissible to substitute the legal representatives at a later stage. The Madras High Court took the similar view in Veerappa Chetty v. Tindal Ponnen, (1908) ILR 31 Madras 86. However, a Full Bench of the Madras High Court in Gopalakrishnayya v. Lakshmanarao, AIR 1925 Mad. 1210, took the view that it is possible in such a case, for the Court, to permit the amendment of the cause title in exercise of powers under Section 153 CPC.
12. After referring to various decided cases on this subject, a Division Bench of this Court in Khaja Begum v. Gulam Mohiuddin, , held that if the plaintiff in the suit comes to know, at a later point of time, that the defendant was dead even by the time the suit was filed, an application under Order 26 C.P.C., can be ordered, if the cause of action was not barred by limitation, against the legal representatives. On finding that the cause of action against the legal representatives was barred by limitation, permission can be refused in that case. This principle was followed by a learned Single Judge in R. Rajyalakshmamma v. R. Kannaiah, .
13. In all the cases referred to above, the respective plaintiffs were not aware of the death of the defendant till the filing of the suit. As a matter of fact, the occasion for the plaintiff to file a suit against a person, whom he knows was dead, does not arise. It hardly needs any emphasis that no individual can file a suit against a person, knowing fully well that the person is dead. Therefore, there was no occasion for any Court to consider the question as to whether it is competent for a plaintiff to bring the legal representatives of the deceased defendant, though he knows the factum of the death of such defendant before filing the suit. This question arises in these revisions.
14. Before filing the suit, the plaintiff got issued a notice dated 2-6-1999 to the first defendant. It was returned by the postal authorities with an endorsement dated 3.6.1999 that the first defendant died. A specific reference was made to the notice in Para 7 of the plaint. The notice, together with the envelope on which the endorsement dated 3.6.1999 was made, was filed as a suit document. The proposed legal representative pointed out the same to the Trial Court and it was not disputed by the plaintiff. Once it has emerged that the plaintiff was aware of the death of the first defendant, much before the suit was filed, the very institution of the suit becomes illegal. Therefore, the question of bringing the legal representatives of the deceased first defendant does not arise.
15. Basically, a plaintiff is presumed to be having a subsisting cause of action or dispute against the defendant in a suit, and institution of a suit against the dead person is virtually a contradiction in terms. The Courts have shown a semblance of lenience to the plaintiffs in cases where they were not aware of the death. There may be cases where the plaintiff had a dispute with the defendant and by the time he initiated the action, the defendant had expired. In such cases, the Courts have permitted the legal representatives of the deceased defendant to be brought on record, subject to the survival of cause of action against the proposed legal representatives. It is beyond anybody’s comprehension that an action can be initiated against a person known to have died.
16. It is true that the Trial Court did not examine the matter from this angle. The fact, however, remains that the plaintiff was very much aware that the first defendant died even by the time he got issued the notice and despite the same, it has chosen to file the suit. Therefore, it took steps to bring the legal representatives of the first defendant on record. Such a course cannot be countenanced and proceedings before the Civil Courts cannot be reduced to a level of mockery. Hence the revisions deserve to be dismissed.
17. The learned Counsel for the plaintiff submits that even if the suit was defective and not maintainable against the first defendant, the cause of action against Defendants 2 to 5 survives and on that premise seeks a direction to the Trial Court to proceed with the suit against them. This question did not fall for consideration before the Trial Court. The question, as to whether the liability of respondents 2 to 5 survives after the death of the principal debtor and if so, the nature and extent thereof needs to be considered independently. The extent of the liability of the other defendants can be considered only when a question is raised by the Court itself or by the plaintiff. As and when the occasion arises, the Trial Court shall deal with the same.
18. The C.R.Ps. are dismissed with the above observation.