Jammu & Kashmir High Court - Srinagar Bench
Abdul Majeed Baba vs Ghulam Qadir Baba Has Been Instituted On ... on 20 April, 2012
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR C.Rev. No. 65 of 2011 CMP No. 234 of 2011 Abdul Majeed Baba Petitioners M/S M. Company Respondents !Mr. Q. R. Shamas, Advocate ^Mr. M. A. Makhdoomi, Advocate Honble Mr. Justice Mohammad Yaqoob Mir,Judge Date:20/04/2012 : J U D G M E N T :
1. Suit captioned M/S M & Company Engineers & Contractors Pvt. Ltd Vs. Ghulam Qadir Baba has been instituted on 09.12.2009 seeking following relief:-
a) A decree of Mandatory Injunction directing the defendant and any person claiming through or under him to effect necessary renovation/repairs in the demised suit premises enabling the plaintiff to continue with the business without facing further hardships and inconvenience as well as be directed to allow the plaintiff to hold and possess physically the suit premises which the plaintiff is otherwise entitled to hold.
b) A decree of Permanent Injunction restraining the defendant and any one claiming through or under him from creating third party interest in any manner whatsoever of the suit premises.
c) Any other decree or order which this Honble Court deems just and proper may be passed in favour of the plaintiff and against the defendant to meet the ends of justice.
2. Summons were issued from time to time. On 9.3.2010, trial court proceeded in ex-parte against the defendant. On 19.04.2011, an application came to be filed on behalf of petitioner Abdul Majeed Baba S/O Ghulam Qadir Baba seeking leave to intervene. In the said application it has been projected that the plaintiff has filed the suit fraudulently against Ghulam Qadir Baba who has expired much before the institution of the suit, the property of Late Ghulam Qadir Baba has devolved upon the applicant (petitioner herein), then it is projected that the suit being against a dead person is a nullity, therefore, be dismissed.
3. Trial court has rejected the application vide detailed order dated 19.4.2011 opining therein that in ex-parte evidence was led and the case was fixed for arguments/decision on 01.05.2010 but in the meantime application came to be filed. It is also noticed in the order that the process server had gone for effecting service on the defendant, the report on summons as recorded would indicate that it was never divulged that Ghulam Qadir Baba is dead. Trial court while referring to Order 22 Rule 1 and Rule 4 and then to Rule 10 has opined that no negligence can be attributed to the plaintiff in filing the suit against the dead defendant, nothing has been brought on record to show that the plaintiff was aware about the death of the defendant, therefore, suit cannot be treated as nullity. Right to sue survives against LRs of the deceased defendant. Application of Abdul Majeed Baba has been accepted to the extent of arraying him as party/defendant and the time has been given to the counsel for the plaintiff for bringing on record the other LRs of the deceased defendant.
4. Dissatisfied with the said order reivisional power under Section 115 of CPC has been invoked.
5. Learned counsel for the petitioner (son of the deceased defendant) would contend that the suit has been filed against a dead person, therefore, is nullity. Trial court has not appreciated the position of law, the order impugned runs contrary to the law as has been laid down by the Division Bench of this Court in the judgment captioned Ali Mohammad Khan vs. Vijay Tulsi (AIR 1986 J&K 26).
6. In the reported judgment it has been noticed that the suit was filed against the defendant who was dead five years before the institution of the suit, an application was filed for substitution, same was permitted and the plaintiff was to amend the plaint and to bring on record legal representatives of the deceased defendant. The said order was challenged by medium of revision petition. Learned Single Judge formulated the following question for adjudication:
Where a suit is filed against a dead person, can the plaintiff be allowed subsequently to amend the plaint and substitute the legal representatives in place of the deceased defendant The Division Bench of this Court while noticing the position of law laid down by the Division Bench of Mysore High Court in case C. Muttu Vs. Bharat Match Works Sivakasi (AIR 1964 Mys. 293) and then while relying on the judgment rendered by the Honble Apex Court in case Hira Lal Vs. Kalinpath (AIR 1962 SC 199), has held as under:
5. In view of the aforesaid pronouncement of the Supreme Court, the question referred to in the earlier part of this judgment must be answered in the negative and it must be held that where a suit is filed against a dead person it is a nullity and the plaintiff cannot be allowed subsequently to amend the suit and substitute the legal representatives in place of the defendant. It appears that the observations of the Supreme Court were not brought to the notice of the learned single Judge when the case was referred to the Division Bench.
7. In the judgment Pratap Chand Mehta v. Smt. Krishna Devi Mehta (AIR 1988 Delhi 267), suit was filed against the sole defendant who was dead at the time of filing of the suit. It was held that the suit filed against the sole dead defendant is nullity and the plaintiff cannot be allowed subsequently to amend the suit and substitute legal representatives in place of the deceased defendant. Application of the plaintiff under Order 22 Rule 4 CPC was dismissed and finally it was held that the suit filed by the plaintiff against a dead person is a nullity so was dismissed.
8. Learned counsel for the respondent with all seriousness contended that the plaintiff had no knowledge about death of the defendant, with all bonafides he had filed the suit and added that time and again summons were send for execution but no one on spot had reported to the process server about the death of the defendant, even son of the deceased had not divulged it, therefore, bonafidely suit proceedings were pursued. When bonafides of the respondent are not doubtful, the mistake committed in arraying a dead person as defendant is open for rectification. Supporting this submission has placed reliance on the judgment rendered in Karuppaswamy and others v. C. Ramamurthy (AIR 1993 SC 2324).
9. In the reported judgment suit had been filed against a person who had died six weeks prior to the filing of the suit. Plaintiff became aware about said death only from remarks on returned summons and immediately thereafter application under Order 22 Rule 4 CPC for impleading legal representatives of the dead defendant was filed by the plaintiff. The Honble Apex Court has held that the plaintiff had acted in good faith and had committed mistake in that frame of mind. While noticing the position of the Proviso to Section 21 of the Limitation Act, the Honble Apex Court held that While invoking the beneficent proviso to sub-section (1) of Section 21 of the Act an averment that a mistake was made in good faith by impleading a dead defendant in the suit should be made and the court must on proof be satisfied that the motion to include the right defendant by substitution or addition was just and proper, the mistake having occurred in good faith, the courts satisfaction alone breaths life in the suit. It is in the background of the proviso to Section 21 of the Limitation Act, mistake of impleading dead person was permitted to be corrected by filing an application for substitution subject to satisfaction about the bonafides of the plaintiff.
10. The judgment is not of any help to the respondent (plaintiff) because proviso to Section 21 of the Limitation Act as available in the Central Act is not available in the State Act. Section 21 of the Limitation Act, 1963 of the Central Act corresponds to Section 22 of the State Limitation Act. Section 21 of the Central Limitation Act reads as under:
21. Effect of substituting or adding new plaintiff or defendant.(1) Where after the institution of a suit, a new plaintiff or, defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party:
Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.
(2)Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff. Section 22 of the State Limitation Act reads as under:
22. Effect of substituting or adding new plaintiff or defendant:
(1) Where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party.
(2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to an assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.
11. Sub-section (1) excluding the proviso and sub-section (2) of Section 21 of the Central Limitation Act is pari materia with Section 22 of the State Act therefore, the proviso to sub-section (1) of Section 21 of the Central Act is not available in the State Act, such benefit as is made available by the beneficent proviso is not available to the respondent. It being so, the law laid down by the Division Bench of this Court in AIR 1986 J&K 26, as referred to hereinabove, is binding so has to be followed. Therefore, trial court has erred in passing the order impugned.
12. In the final analysis, in view of the law laid down by the Division Bench of this Court supra, revision petition is allowed, order impugned, as such, is set aside. As a necessary corollary, suit being against a dead person is nullity, so dismissed.
13. Trial court record along with copy of the judgment be send back.
(Mohammad Yaqoob Mir) Judge Srinagar 20.04.2012 Mohammad Altaf