S.L. Talati, J.
1. The petitioners challenge by this petition the order passed by the Civil Judge (J.D.), Botad in Regular Civil Suit No. 2 of 1981 which is passed on an application Exh. 33 on 24-8-1983.
2. In order to appreciate the entire matter full facts are required to be stated.
3. A Regular Civil Suit was presented in the Court of Civil Judge (J.D.) at Botad on 5-1-1981. The names of the plaintiffs shown in the plaint were as under:
(1) Ramniklal Damodardas, and
(2) Kantilal Damodardas.
This Ramanikial Damodardas is opponent No. 3 in this petition. It appears that Kantilal Damodardas had signed the plaint on 30-11-1980. For one reason or the other the plaint came to be presemed by the advocate of the plaintiffs on 5-1-1981. The suit was numbered as Regular Civil Suit No. 2 of 1981. Now it appears that this Kantilal Damodardas expired on 30-11-1980. The death certificate is produced at mark 15/1. This would mean that Kantilal Damodardas expired after signing the plaint on 30-11-1980. However, as I have observed earlier the plaint came to be presented on 5-1-1981. This would mean that when the plaint was presented to the Court Kantilal Damodardas was no more alive and he had already died. The result was that it was a plaint by a living person Ramniklal Damodardas and a dead person Kantilal Damodardas.
4. Thereafter on 10-4-1981 an application exh. 15 was submitted by the heirs and legal representatives of Kantilal Damodardas. In that petition it was stated that Kantilal Damodardas had died on 30-11-1980 and, therefore, it cannot be considered that the suit was filed by Kantilal Damodardas inasmuch as the suit was filed on 5-1-1981. The request, therefore, was made that they may be brought on record as plaintiffs. Thereafter it appears that again an application exh. 33 was presented to the Court on 16-8-1983. If one reads exh. 33 it would be clear that it is verbatim the same as per exh. 15 except paragraph 2 and in that paragraph what has been stated is that application exh. 15 was given on 10-4-1981 but without giving any opportunity for hearing in absence on 24-4-1981 an order on plaint exh. 1 was passed. That application came to be rejected by the Court by an order dated 24-8-1983 and the main reason given for rejecting that application is that because the predecessor of the Judge in question had already passed order on plaint exh. 1 it was not possible for him to pass different type of order.
5. Now I have heard the learned advocate Shri Sompura for the petitioners and the learned advocate Shri Gandhi for opponent No. 2 who is original defendant. Now, it is required to be stated that the suit was for possession of one godown and mesne profits. According to the plaint that godown was of the ownership of Ramnikial Damodardas and Kantilal Damodardas who were named as plaintiffs when the suit was presented. The learned advocate Shri Gandhi submitted that Section 115 of the Civil Procedure Code which contemplates the Revision could only be entertained if the appeal does not lie and it could be decided only if there is a jurisdictional error. He submitted that so soon as the order was passed on exh. 1 the suit partly abated unless that order is challenged by filing an appeal and that order is set aside nothing could be done and no Revision petition could lie. My attention was drawn to a case of Meramreddi Ramireddi minor by guardian and natural mother, Kagabhushanamma v. Vallabareddi Ramakrishna Reddy and Anr. reported in A.I.R. 1949 Madras at page 404. Now it was a case where one Kamamma filed a suit for a declaration that she was the owner of certain property and for an injunction restraining the defendants from interfering with her possession. Her suit was dismissed. She in due course filed an appeal, but before she did so she had adopted the appellant. In appeal that person was not made a party. Some time after the appeal was filed, the widow died. The appellant then sought to be brought on record as a legal representative. Petitions were submitted which were dismissed on the ground that the appellant was not legal representative of the widow and that her interest had not devolved upon the appellant and it was held that he could not be added as a party under Order 1 Rule 10 of the Civil Procedure Code. When this application came to be dismissed the appeal was held to have abated. After that order a petition was filed under Order 22, Rule 3 C.P.C. and against the order in that petition revision was filed. It was held that the court would not ordinarily entertain the revision where an alternative remedy by way of appeal against the order of abatement lies.
6. The second ruling to which my attention was drawn was a case of Thadikonda Gopalaratnam v. Thadikonda Lakshmikantam and Anr. reported in A.I.R. 1943, Madras at page 569. The plaintiff had filed a suit in that case on 2-12-1941 and that the plaintiff died on 24-12-1941 and it was held that where on the death of the plaintiff, an application to be brought as a legal representative of the deceased is dismissed and consequently the suit having been abated is also dismissed, an appeal lies from the order of dismissal and hence no rivision lies. I have carefully considered this aspect of the matter. But as I have narrated the facts above it clearly appears and is borne out that plaintiff No. 2 did not die during the pendency of the suit. Plaintiff No. 2 did not institute the suit though his name appears on the plaint. He signed the plaint on 30-11-1980 and expired on that very day. The suit was never instituted on that day. It came to be instituted in Botad Court for the first time on 5-1-1981. This would mean that when the suit was instituted plaintiff No. 2 was not in existence in this world. He had died. Now, therefore, there were two plaintiffs and both were the owners of the godown. On the death of Kantilal Damodardas when Ramniklal Damodardas was alive this suit cannot abate. The question which is, therefore, argued is when there is partial abatement appeal lies and if the appeal lies, whether revision could be filed? Here also there is some misunderstanding. The suit filed by a dead person is a nullity.
7. It can never be suggested for a moment that Kantilal Damodardas filed a suit. When Kantilal Damodardas never filed the suit the question of his suit being abated would never arise. His suit can only abate if he had filed the suit. Therefore, the first factor is wanting. I may refer to a case of Joginder Singh and Ors. v. Krishan Lai and Ors. reported in . It is observed as under:
The question of substituting the legal representatives of only such a person under Order 22, Rule 4 can arise who was alive at the time when the suit was instituted and has died during the pendency of the suit. The case of a person who had died before the institution of the suit or the appeal, and who was erroneously impleaded as a party, does not fall within the purview of Order 22 of the Code. Whether the amendment to substitute legal representatives is made under Order 1, Rule 10(2) or under Section 153, Civil P.C. would not make any material difference.
8. The second case to which the reference is required to be made is the case of State of West Bengal v. Manisha Maity and Ors. reported in : AIR1965Cal459 . It is a case where erroneously an appeal was filed against a dead person. The observations made in paragraphs 9, 10, 11 and 15 are reproduced as under:
Order 22, Rule 4 of Civil P.C. providing for the procedure for substitution of the heirs and legal representatives of deceased defendants, no doubt, applies to appeals and provides for substitution of the heirs of a deceased respondent. But the rule has no application when the appeal itself was preferred against a dead person. In other words, if the appeal had been preferred against a respondent, who was alive at the time of the filing of the appeal, but died subsequent thereto, his heirs and legal representatives may be brought on the record, by way of substitution within the time allowed by law. If an application for substitution of the heirs of a respondent, who died during the pendency of the appeal, be not made within the time allowed by law, the appeal abates but Order 22, Rule 9 of Civil P.C. provides for a procedure for setting aside abatement. But if an appeal be preferred against a dead respondent, the appeal itself is still-born and is no appeal in the eye of law. Nothing in Order 22 of Civil P.C. will revive the appeal, when the death of the respondent comes to light.
In order to prefer an appeal against a decree obtained by a person, who was dead at the time of the filing of the appeal, it would be necessary to make his heirs or legal representatives respondents to the appeal. The factum of the death of the decree-holder and names of his heirs or legal representatives may be incorporated, for greater safety, in an affidavit accompanying the memorandum of appeal, and an order may be sought from the appeal court to proceed with the appeal against the heirs of the person, who had obtained the decree.
The remedy of an appellant, who has unknowingly filed an appeal against a dead person, is to file an application for presentation of the appeal against the heirs of the dead person afresh. If the time for filing the appeal was in the meantime over, he is to present an application, under Section 5 of the Limitation Act, therein explaining the delay in presenting the appeal afresh against the heirs of the dead person. If he can make out sufficient cause for making the belated prayer, the Court may allow the same, amend the cause title of the memorandum of appeal by incorporation of the name of the heirs and legal representatives of the dead person and treat the appeal as afreshly presented appeal against the heirs.
Held on circumstances of the case that the appeal be treated as presented against the heirs of the deceased sole respondent and the delay in filing the appeal condoned.
9. Now that, therefore, as Kantilal Damodardas had not instituted the suit that suit cannot abate so far as Kantilal Damodardas is concerned. In fact is was not a suit by Kantilal Damodardas. Therefore, when there was no suit there was no question of abatement. When there was no question of abatement that abatement was not required to be set aside. There was no suit and no abatement and if any order of abatement is passed that order is not on the plaint of Kantilal Damodardas because Kantilal Damodardas had presented no plaint. If any order is passed which is not on the plaint of Kantilal Damodardas that order is a nullity. That order was not against Kantilal Damodardas because Kantilal Damodardas was no more in the world. No order could have been passed against representatives of Kantilal Damodardas because they were not brought on record. The only alternative for everyone concerned in the suit was to bring the heirs and legal representatives of Kantilal Damodardas who had not filed the suit. But his brother's suit was pending in regard to the very property in which Kantilal had interest and his heirs were required to be brought on record. Thus, in the suit of Ramniklal Damodardas where deceased Kantilal Damodardas who had not filed the suit had interest the legal representatives of Kantilal Damodardas were required to be brought on record and this could only be done by having resort to Order 1, Rule 10 of Civil Procedure Code and this was being done. That effort cannot be allowed to fail. Any order passed not allowing them to be brought on record would be an order which one can say is that the Judge has refused to exercise jurisdiction which he had and when Civil Judge refused to exercise the jurisdiction which he possesses the only alternative left is to file Revision. It is in such a case alone perhaps that Section 115 C.P.C. would apply. Under these circumstances this petition is allowed. The heirs and legal representatives of Kantilal Damodardas to be brought on record and added as the plaintiffs. The order passed on exh. 1 is not required to be set aside either in appeal or in revision because it is a nullity. This is only stated for the purpose of clarification.
10. In the result this petition is allowed and the order passed below exh. 33 is set aside.
Rule is made absoulte with no order as to costs.