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Goverdhan Dass and anr. Vs. Darshan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revision No. 22 of 1968
Judge
Reported inAIR1969P& H372
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 and 153 - Order 1, Rule 10(2)
AppellantGoverdhan Dass and anr.
RespondentDarshan Singh and ors.
Appellant Advocate A.L. Bahri, Adv.
Respondent Advocate K.C. Nayar, Adv.
Cases ReferredIn C. Raju v. Dinshaji Dadabhai Italia
Excerpt:
.....and completely adjudicate upon and settle all the questions in the suit. it is true that guftar mal was dead on the day when the suit had beem instituted against him, but it was conceded by the learned counsel for the petitioners as well as the respondents that on 8-6-1963 when the plaintiffs filed an application for impleading the legal representatives of cuftar mal as defendants in the suit, the limitation for challenging the twoalienations made in favour of guftar mal had not run out and an independent suit could be brought by the plaintiffs against the petitioners on that date in that behalf......on the reversionary rights of plaintiffs, as the properties alienated were ancestral ones. in this suit guftar mal was impleaded as defendant no.4. while the enquiry as to the pauperism of the plaintiffs was proceeding, on 8th of june 1963, the plaintiffs filed an application to the effect that guftar mal was already dead when the suit had been filed by them and that fact was not within their knowledge. it was prayed that his sons goverdhan dass and syed mal be, therefore, substituted in place of guftar mal, deceased. notice of this application was given to the sons of guftar mal and on 3rd of september, 1963, they filed a written statement and in paragraph 5 of the preliminary objections, they took the plea that guftar mal defendant no4 had died one year back and since the suit was.....
Judgment:

1. One Pakhar Singh made a number of sales of separate parcels of land in favour of different vendees on different dates. Two such alienations were made on 8th of August 1959 and 24th of August 1959. The former was with regard to 14 Kanals 1 Marla of agricultural land situate in village Ali Chak in district Jullundur for Rs.1400 and the other regarding 8 Kanals in the same village for Rs.800. Both these sales were made in favour of Guftat Mal. On 30th of January, 1963, Darshan Singh and two others, who were the sons of Pakhar Singh, brought a suit in forma pauperis challenging the various alienations including the two mentioned above made by their father for a declaration that the said alienations were without consideration and legal necessity and, consequently, not binding on the reversionary rights of plaintiffs, as the properties alienated were ancestral ones. In this suit Guftar Mal Was impleaded as defendant No.4. While the enquiry as to the pauperism of the plaintiffs was proceeding, on 8th of June 1963, the plaintiffs filed an application to the effect that Guftar Mal was already dead when the suit had been filed by them and that fact was not within their knowledge. It was prayed that his sons Goverdhan Dass and Syed Mal be, therefore, substituted in place of Guftar Mal, deceased. Notice of this application was given to the sons of Guftar Mal and on 3rd of September, 1963, they filed a written statement and in paragraph 5 of the preliminary objections, they took the plea that Guftar Mal defendant No4 had died one year back and since the suit was brought against a dead person, it was a nullity and assuch was liable to be dismissed. It appears that no order weas passed on the application filed by the plaintiffs on 8th of June 1963 and Goverdhan Dass and Syed Mal also went on taking part in the proceedings in the cas4e and their objection was also not decided.

On 18th of April, 1966, issues on merits were framed and on 1st of August, 1967 Goverdhan Dass and Syed Mal filed a petition under Order 14, Rule 5 read with Section 151 of the Code of Civil Procedure saying that no decision had been given on the application of the plaintiffs dated 8-6-1963, and the same should be decided . their allegations were that their father had died 20-3-1962 i.e., before the institution of the suit and, consequently, the against a dead person was a nullity. Their names as legal representatives of the deceased person could not be substituted in place of their deceased father in such a suit. This petition was opposed by the plaintiffs, who pleaded that Goverdhan Dass and Syed Mal had been taking part in the proceedings of the suit and even at the time of the framing of the issues they had not raised any objection, with the result that they were estopped from making an application of that kind.

2. On the pleadings of the parties, the following issues were framed:-

1. Whether Guftar Mal died before the institution of the suit? If so, its effect.

2. Whether Syed Mal and Goverdhan Dass are estopped by their act and conduct to file this application?

3. Whether Syed and Goverdhan Dass have been duly impleaded in place of Guftar Mal? If so, its effect.

On issue No.1, the finding given by the trial Judge was that Guftar Mal had died on 20-3-62 i.e., before the institution of the suit, with the result that his name had to be struck off from the array of defendants. On issue No.3, his finding was that Goverdhan Dass and Syed Mal should be brought on the record as defendants in place of Guftar Mal under the provisions of Order 1, Rule 10 (2), Civil Procedure Code. According to him, the plaintiffs had, on 8-6-63, before the suit was formally registered after the pauper application had been decided, brought an application for the substitution of their names in place of Guftar mal. After the deathe of Guftar Mal, the land covered by the two alienations in his favour had been mutated in the names of these legal representatives and during the pendency of the suit, they had further alienated that land. According to the learned Judge, the circumstances of the case clearly showed that the presence of Goverdhan Dass and Syed Mal in the suit was necessary in order to effectively and completely adjudicate upon and settle all the questions in the suit. No decision was given on issue No.2 bythe learned Judge in view of his decision on issue No.3. Against this order, the present revision petition had been filed by Goverdhan Dass and Syed mal.

3. It would be apparent from the facts given above that the Court had taken action under the provisions of Order I, Rule 10 (2) of the Code of Civil Procedure, which says:-

'The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessay in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added'.

A perusal of this provision would show that the Court is empowered, at any stage of the proceedings in a suit, to order that the name of any party which had been improperly joined to the said suit be struck out and the name of any other person, who ought to have been joined or whose presence before the Court was necessary in order to enable it to effectually and completely adjudicate and settle all the questions involved in the suit, be added. This rule does not deal with the substitution of parties, but only with their striking out or addition. It would therefore, be seen that by virtue of this provision, the name of the person whose presence, according to the Court, is necessary, has to be added as a plaintiff or a defendant, in a suit which is already pending. A suit filed by a dead person or instituted against a dead person could not be treated as a pending suit, because under such circumstances, it could not be said that any person had filed a suit or a suit had been filed against any person. Under both contingencies, therefore, the provisions of Order I, Rule 10 (2) could not be utilised for adding a person as a party. In the instant case, the suit had, admittedly, been filed against a dead person, because Guftar Mal had died long before the institution of the suit. That being so, the names of his legal representatives could not be added to such a suit by taking recourse to the provisions of Order I, Rule 10 (2) of the Code of Civil Procedure.

4. It was, however, argued by the learned counsel for the respondents that in the instant case, there were a number of defendants and even if one of them was dead at the time of the filing of the suit, a the names of his legal representatives could be added to the list of other defendants in the case. He also contended that it might be only in a case when a suit had been brought against a sole defendant or an appeal had been instituted against a sole respondent, who were already dead on the dates when the suit was filed or the appeal was instituted, that their legal representatives could not be added in place of the deceased under the provisions of Order I, Rule 10 (2) of the Code of Civil Procedure.

5. There is no merit in this contention, because in the case in hand, as already mentioned above, the plaintiffs challenged a number of alienations of separate parcels of land in favour of different vendees on different dates. In other words, a number of suits challenging the various alienations had been combined into one, as if each alienation gave a separate cause of action to the plaintiffs. So far as the two alienations in dispute were concerned, the suit could be instituted only against Guftar Mal, the sole vendee. He was, however, dead at the time of the institution of the suit. It was, therefore, not a case where there were a number of defendants against whom one common cause of action had accrued to the plaintiffs. No case was cited by the laearned counsel for the respondents in which several defendants had been impleaded in a suit, because different causes of action had accrued against them and in that case if the sole defendant against whom there was an independent cause of action was dead at the time of the filing of the suit, his legal representatives were adeed as defendants under Order I, Rule 10 (2) of the Code of Civil Procedure.

6. It was then contensded by the learned counsel for the respondents that the names of Goverdhan Dass and Syed Mal could be substituted in place of their deceased father Guftar mal under the provisions of Section 153 of the Code of Civil Procedure, because when the application for that purpose was made by the plaintiffs on 8-6-1963, they could filed an independent suit against the petitioners challenging the alienations made by Pakhar Singh in favour of Guftar mal. There was, according to the learned counsel, no point in disallowing their prayer and compelling them to bring another similar suit against the petitioners, especially when the petitioners had kept silent for a long time and had taken part in the proceedings of present suit.

7. Section 153 of the Code of Civil Procedure says:-

'The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.'

It would be seen that very wide powers are given to the Court to amend any defect or error in any proceeding in a suit by making the necessary amendment for determining the real question or issue between the parties. As has been rules in a number of decisions, the object of this rule allowing amendments is to minimise litigation and avoid multiplicity of proceedings and also to see that the technicalities may not be allowed to stand in the way of substantial justice. It is true that Guftar Mal was dead on the day when the suit had beem instituted against him, but it was conceded by the learned counsel for the petitioners as well as the respondents that on 8-6-1963 when the plaintiffs filed an application for impleading the legal representatives of Cuftar Mal as defendants in the suit, the limitation for challenging the twoalienations made in favour of Guftar Mal had not run out and an independent suit could be brought by the plaintiffs against the petitioners on that date in that behalf. There was then no point in rejecting the plaintiffs application and compelling them to file a separate suit against the petitioners challenging the said two alienations. In order to avoid multiplicity of litigation and do substantial justice between the parties, the Court, in my opinion , could have substituted the names of the petitioners in place of their father Guftar Mal under the provisions of Section 153 of the Code of Civil Procedure, when, concededly, the limitation for filing an independent suit against them was still their. The suit in respect of these alienations would be deemed to have been instituted against the petitioners on 8-6-1963. It is true that the plaintiffs had not made the application dated 8-6-1963 under Section 153 of the Code of Civil Procedure, but that does not make any difference. As a matter of fact, it had not been stated in the application as to under what provisions of law the same had been made. The Court could suo motu take action under Section 153 of the Code of Civil Procedure and implead the petitioners as defendants in the suit in place of their deceased father Guftar Mal.

8. The view that I have taken above finds support in a number of decided cases of various High Courts. In a Full Bench decision of the Madras High Court in Gopalakrishnayya v. A. Lakshmana Rao, AIR 1925 Mad 1210, it was observed-

'If an appeal is presented against a person who was dead at the date of presentation, the Court may under Section 153 permit the cause title to be amended or may return the appeal memorandum for amendment and representation. Although the appeal may be incompetent owing to the wrong person being named as respondent, the Court which deals with it is acting in a proceeding in a suit and as such has full power under Section 153 to direct an amendment of the appeal memorandum.'

Similarly, in Kannangara Ismail v.P.K. Pavu Amma, AIR 1955 Mad 644, Govinda Menon , J., held-

'A suit was filed against certain defendants who were dead at the time of filing it. The Court in ignorance of that fact and on the assumption that they were alive on the date of the suit ordered their legal representatives to be brought on record on the application of the plaintiff. The suit was not time-barred as against the legal representatives on the date of applicaion for impleading them as legal representatives. A decree was passed against these new defendants.

Held that the plaint could be considered as freshly instituted against the new defendants on the date when the application for impleading them was filed and hence the decree could not be said to be void abinitio.'

IN Jagarnath Raut v. Commissioners of Buxar Municipality, AIR 1961 Pat 480, a Division Bench of the Patna High Court consisting of V. Ramaswami C. J., and N.L. Untwalia, J., followed the Full Bench decision of the Madras High Court in Gopalakrishnayya's case quoted above and observed as follows:-

'A suit cannot be instituted against a dead person. But where such a suit is instituted Section 153, Civil P.C., gives sufficient authority to the court to allow amendment of the plaint within the period of limitation upon the application of the plaintiff to implead the legal representatives of the deceased defendant as pafty defendants, provided the suit is not barred by limitation against them on the date of the application. The true legal position is that the Court is treating the amendment petition as if it is a new plaint presented against new parties on the date on which the application for amendment is made.'

In C. Raju v. Dinshaji Dadabhai Italia, AIR 1961 Andh Pra 239, it was held-

'Where in a suit originally filed against father and his son as surety, it subsequently transpires that the father was dead before the institution of the suit, it is open to the Court upon the application of the plaintiff to implead the legal representatives of the deceased defendant as party defendants, if the suit is not barred by limitation against them, on the date of the application. The terms of Section 153 are sufficiently wide.

A suit instituted against a dead person cannot be regarded as a suit against a wrong person. Under Sec 153 the legal representatives can be impleaded as parties. There is nothing to prevent the Court from construing the plaint as if it was filed against new parties on the date on which the application for amendment was made.'

In view of what I have said above, the order passed by the Court below can be sustained, because action taken therein could, in my opinion, be justified under the provisions of Section 153 of the Code of Civil Procedure.

9. The result is that this petition fails and is dismissed, but with no order as to costs.

10. Petition dismissed.


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