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Didwania and Co. (P) Ltd., (In Liquidation) Vs. Jagdish NaraIn IndranaraIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. Nos. 141, 142 and 325 of 1966
Judge
Reported inAIR1971All407
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rule 3
AppellantDidwania and Co. (P) Ltd., (In Liquidation)
RespondentJagdish NaraIn IndranaraIn and ors.
Appellant AdvocateG.S. Srivastava, Adv.
Respondent AdvocateN.K. Verma, Adv.
DispositionAppeal allowed
Excerpt:
civil - legal representative - order 22 rule 3 of code of civil procedure, 1908 - abatement of suit - suit filed by a company through its two liquidators - one dies - application for amendment of title of plaint - no application for substitution of heir of deceased liquidator, made within prescribed period of limitation - held, application for amendment cannot be dismissed, and suit cannot abated. - .....that the liquidators, for all practical purposes, were to be deemed to be the plaintiffs in the suit. an application for substitution of the heirs of the deceased liquidator ought to have been made within 90 days of the appointment of the successor. the successor was appointed on 24-1-1962. the suit abated when no application for substitution was made within the prescribed period of limitation. 3. we have had some difficulty in appreciating the line of reasoning that appealed to the learned judge. the learned judge observed that it is true that the plaintiff was didwania & co. (p) ltd., a juristic personality. it was no man's case that the plaintiff had died. a suit cannot possibly abate when the parties to it are alive. the liquidator acted only as a vehicle upon whom service of.....
Judgment:

Satish Chandra, J.

1. The samepoint is involved in all the three appeals. F. A. F. O. No. 142 of 1966 has been filed by the plaintiff. It is directed against an order declaring the suit to have abated.

2. Didwania & Co. (P) Ltd. thepetitioner-appellant, is a registered Company. It went in voluntary liquidation. The two liquidators, acting on behalf of this Company, filed the present suit. The plaint was headed as Didwania & Co. (P) Ltd. (In liquidation) having its registered office at Mohalla Chitraghanta in the city of Varanasi through its Liquidators Gopal Lal Gupta and Ram Shanker Singh. During the pendency of the suit Gopal Lal Gupta, one of the liquidators, died on 22-11-1961. The Company by a resolution, appointed one Kedar Nath as the co-liquidator. It appears that the trial Court had permitted the plaintiff-company to sue in forma pauperis. Aggrieved, the defendant had filed a revision in the High Court against that order. After the decision of dismissal of the revision, the record was received back by the trial court on 20-4-1965. Thereafter the proceedings commenced, and on 3rd November 1965, an application for amendment of the plaint was made on behalf of the plaintiff. It was prayed that in the title of the suit the name of Gopal Lal Gupta be struck off and the words 'deceased' be written thereafter and that the name of Kedar Nath be added. The court below has dismissed this application on the ground that the liquidators, for all practical purposes, were to be deemed to be the plaintiffs in the suit. An application for substitution of the heirs of the deceased liquidator ought to have been made within 90 days of the appointment of the successor. The successor was appointed on 24-1-1962. The suit abated when no application for substitution was made within the prescribed period of limitation.

3. We have had some difficulty in appreciating the line of reasoning that appealed to the learned Judge. The learned judge observed that it is true that the plaintiff was Didwania & Co. (P) Ltd., a juristic personality. It was no man's case that the plaintiff had died. A suit cannot possibly abate when the parties to it are alive. The liquidator acted only as a vehicle upon whom service of summons etc., could be made, on behalf of the Company. The death of such a person cannot be equated with the death of a party to the suit. Since the plaintiff was alive, the suit could not be declared to have abated, by reason of the death of one of the persons through whom the plaintiff-Company had sued. An application for amendment of the title of the plaint was not an application for substitution of the heirs of a deceased party. Such an application was not governed by any law of limitation. The prayer in the application was a technical one, meant merely to keep the record of the suit straight.

4. In the result all the three appeals succeed and are allowed. The impugned orders are set aside and the applications for amendment made by the successor liquidator are allowed. The appellant in these appeals will be entitled to costs from the contesting respondents.


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