Punjab-Haryana High Court
Dhan Singh vs Gurdev Kaur And Ors. on 21 September, 2005
Equivalent citations: (2006)142PLR276
Author: Jasbir Singh
Bench: Jasbir Singh
JUDGMENT Jasbir Singh, J.
1. Vide order under challenge (dated 17.8.2004) application of the petitioner-plaintiff to implead LRs of deceased Hardial Kaur, was dismissed, on the ground that Hardial Kaur had died on 28.10.1998 whereas the suit was filed in the year 2004, as such it was a nullity.
2. It is apparent from records that suit was filed not only against Hardial Kaur, but also a gainst Gurdev Kaur and Hamir Kaur. Even if it is presumed that suit a gainst Hardial Kaur deceased was a nullity and her legal heirs have not right to be impleaded as a party, the suit still survives.
3. Under the circumstances, this Court feels, that, it was necessary for the trial Court to allow the petitioner, to bring on record the legal heirs of deceased Hardial Kaur. This view find support from ratio of judgment of this Court in Karam Kaur (died) v. Dalip Singh (dead) through LRs (2001-1)127 P.L.R. 514 wherein it has been observed thus:-
Learned counsel for the petitioner submits that it is true that Dalip Singh was dead since before the date of the institution of the suit but it is equally true that in this case, Dalip Singh was not a defendant with him and if Dalip Singh were the sole defendant, the suit filed by Karam Kaur would have been a nullity. It is submitted that this suit could not have been viewed as nullity when Ranjit Singh was a defendant in the suit. So far as the legal representatives/heir of Dalip Singh deceased is concerned, the suit shall be deemed to have been instituted against him/her when the application for bringing on record his LR/heir was filed in the trial Court. It is submitted that the judgment reported as Cuttak Municipality v. Shyamsunder Behera, , where it was held that "suit against dead person is a nullity" is not applicable to the facts of this case as her Dalip Singh and Ranjit Singh sons of Anokh Singh both were defendants in the suit whereas in (supra) in S.C.C. Suit No. 106 of 1974 filed by Cuttack Municipality Chintamoni Behera was the sole defendant and in S.C.C. Suit No. 107 of 1074 filed by Cuttack Municipality, Kartik Chandra Mitra was the sole defendant, Chintamoni Behera and Kartik Chandra Mitra both were dead prior to the institution of the suit. It was in these that the High Court of Orissa took the view that suit against dead person was nullity and prayer of the Municipality for bringing on record the Lrs of the deceased-defendants could not be entertained. A Division Bench of Mysore High Court in C. Muttu v. Bharth Match Works, Sivakasi A.I.R. 1964 Mys. 293, held that "In suit filed against a dead person, a Court has no jurisdiction to grant an application under Order 1, Rule 10 and 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. Their Lordships clearly laid down that no substitution can be permitted in a case where there was a sole defendant, but when there are more defendants than one and one of them was dead when the suit was filed, 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." It is submitted that LR of late Dalip Singh defendant should have been allowed to be brought on record. Qua the LR of Dalip Singh defendant, the suit could be deemed to have been instituted on the day when the plaintiff had made an application for his LR being brought on record.
4. The rules and procedure are handmaid of justice to enhance the same and not to scuttle it.
5. Their Lordships of Supreme Court in Sardar Amarjit Singh Kalra (dead) by LRs. and others v. Panned Gupta (Smt.) (dead) by LRs and Ors. of the judgment had opined as under:-
Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice.
View extracted above, was reiterated by their Lordships of Supreme Court in N. Baljit v. Virendra Singh and Ors. , wherein after noting ratio of the judgment, referred to above, in para 10 of the judgment, it was observed that the procedure would not be used to discourage the substantial and effective justice but would be so construed as to advance the cause of justice.
6. In view of the facts and circumstances of this case, revision petition is allowed, order under challenge, is set aside and it is directed that the petitioner be allowed to substitute legal representatives of deceased Hardial Kaur, in her place. The order passed is subject to payment of Rs. 5,000/- as costs to be paid by the petitioner to the LRs. of deceased Hardial Kaur. before the trial Court.
7. Parties are directed to appear before the trial Court on 18.10.2005.