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Bai Pani Vankar Vs. Madhabhai Galabhai Patel - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 160 of 1952
Judge
Reported inAIR1953Bom356; (1953)55BOMLR331; ILR1953Bom965
ActsCode of Civil Procedure (CPC), 1908 - Order 1, Rule 10 - Order 3, Rule 4 - Order 22, Rule 1
AppellantBai Pani Vankar
RespondentMadhabhai Galabhai Patel
Appellant AdvocateM.P. Sethna, Adv.
Respondent AdvocateB.G. Thakore, Adv.
Excerpt:
.....irrespective of whether he is living or a dead person, and that there is no difference between a suit filed in the name of a dead plaintiff and one filed in the name of a wrong person as plaintiff, and according to the learned judge both the cases come within the ambit of order 1, rule 10, and the defect is capable of being cured if the mistake is shown to have occurred in good faith, provided that in permitting the amendment no injustice results to the defendant, and niyoffi j, relies on -gopala kristnayya's case (b)'.with respect to the learned judge, in my opinion there is a fundamental difference between a suit filed in the name of a dead person and a suit filed in the name of a wrong person. (6) now, the bombay case is clearly distinguishable because that was not a case of an..........v. gourishankar', air 1924 bom 109 (a). in that case the learned judge was dealing with a suit filed by the plaintiff against the firm of the defendant's father. the defendant's father was the sole owner of the firm and he had died before the institution of the suit, and mr. justice mulla held that the suit instituted was not merely against a wrong person but against no person at all and he points out at p. 111 that any order made in the suit allowing amendment of the plaint by substituting the legal representative of the deceased as defendant and allowing the suit to proceed against him is also a nullity.(3) mr. sethna has relied on a judgment of the madras high court in --'gopala kristnayya v. lakshmana rao', air 1935 mad 1210 (b). that is a judgment of a full bench, but.....
Judgment:

(1) A suit was filed by one Soma Parma, who was a minor, through his next friend. This suit was dismissed on 23-12-1950. By that time Soma had attained majority and he instructed his pleader on 21-1-1951, to prefer an appeal and he signed a vakalatnama in favour of the pleader on January 22. The pleader preferred the appeal on 29-1-1951. Prior to that date Soma died on 23-1-1951. On 16-3-1951, the present petitioner, who is the heir and legal representative of Soma applied to the District Court to substitute her name in place of Soma. That application was dismissed by the learned District Judge, and it is from that order that this revision application is preferred.

(2) How, apart from authorities, I should have said that the appeal that was preferred, on 29-1-1951, was clearly a nullity. The appellant being dead, the pleader who preferred the appeal had DO authority to prefer any appeal and the vakalatnama signed in his favour had come to an end. If the appeal was a nullity, no order could be made in that appeal which would he an effective order, and therefore the learned District Judge was right in refusing to direct that the petitioner should be substituted in place of the deceased appellant. An effective order under Order 1, Rule 10, can only be made provided there is a suit or an appeal before the Court, but if the suit or the appeal is a nullity, then any order made in that suit or appeal is equally a nullity, and the learned Judge rightly relied on the decision of Mr. Justice Mulla in --'Rampratab v. Gourishankar', AIR 1924 Bom 109 (A). In that case the learned Judge was dealing with a suit filed by the plaintiff against the firm of the defendant's father. The defendant's father was the sole owner of the firm and he had died before the institution of the suit, and Mr. Justice Mulla held that the suit instituted was not merely against a wrong person but against no person at all and he points out at p. 111 that any order made in the suit allowing amendment of the plaint by substituting the legal representative of the deceased as defendant and allowing the suit to proceed against him is also a nullity.

(3) Mr. Sethna has relied on a judgment of the Madras High Court in --'Gopala Kristnayya v. Lakshmana Rao', AIR 1935 Mad 1210 (B). That is a judgment of a Full Bench, but before we turn to that judgment it is necessary to draw attention to an earlier judgment of that Court in --'Veerappan Chetty v. Tincial Ponnen', 31 Mad 8 (C). In that case Wallis and Miller JJ. took the view that there was nothing in the Code of Civil Procedure to authorise the institution of a suit against a deceased person and the Courts have no jurisdiction to allow the plaint in such a case to be amended by substituting the names of the representatives of the deceased, even when the suit is instituted bona fide and in ignorance of the death of the defendant. With respect, I entirely agree with this view. What is said here about a plaint also applies to an appeal. Turning to --'Gopala Kristnayya's case (B)', the Full Bench took the view that when there is an appeal presented against a person who is dead at the date of presentation, the Court has jurisdiction under Section 153 to permit the title 1o be amended. When we turn to the judgment with great respect, no reason is given why a view different from the view expressed in --'Veerappa Chetty's case (C)', has been taken and the decision in --'Veerappa Chetty's case (C)', is not even expressly overruled. What is overruled is another case reported in --'Govindu Kaviraj v. Gauranga Saw', AIR 1924 Mad 56 (D).

(4) The other case relied on by Mr. Sethna is a judgment of the Nagpur Court in --'Kari-mullah v. Bhanu Pratab Singh', AIR 1938 Nag 458 (E). In that case Niyogi J. held that Order 1. Rule 10, only contemplates that the suit should have been filed in the name of a wrong person irrespective of whether he is living or a dead person, and that there is no difference between a suit filed in the name of a dead plaintiff and one filed in the name of a wrong person as plaintiff, and according to the learned Judge both the cases come within the ambit of Order 1, Rule 10, and the defect is capable of being cured if the mistake is shown to have occurred in good faith, provided that in permitting the amendment no injustice results to the defendant, and Niyoffi J, relies on --'Gopala Kristnayya's case (B)'. With respect to the learned Judge, in my opinion there is a fundamental difference between a suit filed in the name of a dead person and a suit filed in the name of a wrong person. When a suit is filed in the name of a wrong person, there is a person alive who files the suit. He happens to be not the proper person by reason of misdescription or some other reason and the real person is brought on the record in substitution. But when a suit Is filed by a dead person, there is no person before the Court at all who can be substituted. The Lahore High Court also has taken the same view in --'Mehar Singh v. Labh Singh', AIR 1932 Lah 305 (F). That was a case where an appeal was filed against a dead respondent and the Court allowed the legal representative to be substituted and the time for such substitution to be excused, and the learned Judge in that case, Mr. Justice Johnstone, also followed-- 'Gopala Kristnayya's case (B)'. As against this there is the judgment of the Calcutta High Court in -- 'Sudhir Kumar De v. Amritalal Seal', ILR (1946) Cal 611 (G), and Khund-kar' J, in that case held that the provisions as to the substitution of the heirs of a deceased defendant in a suit, being applicable only to a case where the defendant was alive at the date of the institution of the suit, a Court has no jurisdiction to substitute the heirs of a defendant who had died previous to the institution of the suit and to decree the suit against the heirs of the deceased defendant.

(5) Mr. Sethna has strongly relied on a judgment of a Division Bench of this Court in

-- 'Alabhai Vajsurbhai v. Bhura Bhaya', AIR 1937 Born 401 (H). It seems that there an appeal was presented against several respondents. Some respondents seem to have died before the appeal was presented and others died pending the appeal, and the main question that arose was whether the appeal had abated. In this connection Wassoodew J, in his judgment relied on -- 'Gopala Kristnayya's case (B)' and expressed the opinion that the view expressed by that decision was the correct view. Wadia J, in his concurring judgment has not referred to this point at all.

(6) Now, the Bombay case is clearly distinguishable because that was not a case of an appeal being preferred against a sole respondent who was dead at the date when the appeal was preferred. That was a case where the appeal was preferred against several respondents and the appeal was properly instituted against some of the respondents who were alive at the date when the appeal was instituted. Therefore, it could not be said that the appeal was a nullity. There was a proper and effective appeal before the Court and really the question of bringing the legal representatives of the respondents who had died before the appeal was preferred was not so much a question of substitution as a question of adding to the respondents who were, already before the Court, and there can be no doubt that if a suit or an appeal is effectively before the Court, the question of addition of parties is regulated by Order 1, Rule 10. Further, it appears from the judgment of Wassoodew J, that the reason why the appeal was not preferred with regard to some of the respondents against the legal representatives was that certain orders passed by the Court had not been duly carried cut and what particularly weighed with Wassoodew J, was that the record should be amended and should be brought in conformity with the orders of the Court passed on various applications. Therefore, in my opinion, the

judgment of the Division Bench on which Mr. Sethna relies is not directly in point and it does not in any way impair the authority in AIR 1924 Bom109 (A) on which the learned District Judge relied.

(7) In my opinion, the view expressed in --'Veerappa Chetty's case (C)' and in -- 'Sudhir Kumar De's case (G)' and also in -- 'Rampratab's case (A)' is the better view and I prefer it to the view expressed in -- 'Gopala Kristnayya's case (B)'; -- 'Karimullah v. Bhanu Pratap Singh (E)' and in -- 'Meher Singh v. Labh Singh (F)' and also to the observations of Wassoodew J, in -- 'Alabhai Vajsurbhai v. Bhura Bhaya (H)' to which I have made reference. I am, therefore, of the opinion that the learned District Judge was right in dismissing the application made by the petitioner.

(8) The result is that the revision application fails. Rule discharged with costs.Rule discharged.


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