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C. Raju And Others Petitioner v. Dinshaji Dadabhai Italia And Another .
Structured Summary of the Provided Opinion
Factual and Procedural Background
This is an application to revise an order of the Fourth Additional Judge, City Civil Court, Hyderabad, which allowed I.A. No. 58 of 1958 in O.S. No. 120 of 1958 and directed the addition of defendants 3 to 7 as parties to the suit.
The suit was originally instituted against defendants 1 and 2. The 1st defendant was the father and the 2nd defendant the son. The liability sued upon was incurred by the 1st defendant and the 2nd defendant was the surety. It transpired that the 1st defendant was dead prior to the institution of the suit.
The respondent filed an application to bring on record defendants 2 to 7 as the legal representatives of the deceased 1st defendant. Subsequently, an application was filed under Order 1, rule 10, Civil Procedure Code, to implead defendants 3 to 7 as parties. The Fourth Additional Judge, following the decision in K. Ismail v. Pavu Amma (1955-2 M.L.J. 184), impleaded defendants 3 to 7. The petitioners filed the present Civil Revision challenging that order.
Legal Issues Presented
- Whether the legal representatives of a deceased defendant (the 1st defendant) may be impleaded as parties to a suit which was originally instituted against that deceased person, under section 153 of the Civil Procedure Code.
- Whether the legal representatives of a deceased defendant may be impleaded as parties to the suit under Order 1, rule 10, Civil Procedure Code (including sub-rules quoted such as Order 1, rule 10(1) and 10(2)).
Arguments of the Parties
Petitioners' Arguments (as presented by Sri V.S. Ashoka)
- The petitioners contended that the decision in K. Ismail v. Pavu Amma should be treated as correct and that because the suit had been instituted against a dead person, the deceased's legal representatives (defendants 3 to 7) ought not to have been impleaded either under section 153 or under Order 1, rule 10, Civil Procedure Code.
- The petitioners relied also on a single-judge decision of the Madras High Court in Municipal Council, Calicut v. Kunhipathumma and on observations in Mohideen v. V.O.A. Mohamed to support their stance (the judgment notes it did not follow that single-judge decision because it did not refer to the Full Bench decision).
Respondent's Arguments (as presented by Sri P. Bapiraju and Sri Vasant Rao Mukhedkar)
- The respondent relied on authorities including Veerappa Chetty v. Tindal Ponnen and the Full Bench decision in Adusumilli Gopalakrishnayya v. Adivi Lakshmana Rao to support the proposition that amendment under section 153 could cure the defect of having sued a dead person.
- Sri Vasant Rao Mukhedkar advanced the contention that Order 1, rule 10(2) could be invoked to implead the legal representatives (defendants 3 to 7) for the purpose of effectually enforcing the rights of parties; the court noted there was considerable force in this contention but found it unnecessary to rely on Order 1, rule 10(2) because section 153 sufficed.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| K. Ismail v. Pavu Amma (1955-2 M.L.J. 184) | Applied by the trial Judge in support of impleading defendants 3 to 7 as parties; treats section 153 as enabling amendment to add legal representatives. | The trial Judge followed this decision to allow impleading; the present court regarded the learned Judge's reliance on it as correct in the circumstances. |
| Mohun Chunder Koondo v. Azeem | Early authority (cited) holding the Court has no jurisdiction to entertain a suit instituted against a dead person. | The court cited this as part of the historical position that a suit cannot be instituted against a dead person and that such a suit is nullity. |
| Veerappa Chetty v. Tindal Ponnen | Held (earlier authority) that courts had no jurisdiction to allow amendment/substitution where suit was instituted against a deceased person (decision pre-dating the Code of 1908/1903 provisions cited). | The court concluded that this earlier Bench decision cannot stand alongside the Full Bench decision in Adusumilli Gopalakrishnayya after the enactment of section 153 and is impliedly overruled. |
| Rasa Goundan v. Pichariuthu Pillai | Followed the decision in Veerappa Chetty in earlier jurisprudence (as cited). | Mentioned as one of the decisions that followed Veerappa Chetty; used in the court's survey of authorities. |
| Adusumilli Gopalakrishnayya v. Adivi Lakshmana Rao (Full Bench) | Full Bench decision interpreting section 153 (and section 141) to permit amendment/return for amendment and re-presentation where proceedings were brought against a dead person; treated as superseding contrary earlier decisions. | The court treated the Full Bench decision as authoritative and held that the Veerappa Chetty view was impliedly overruled by it; the court aligned with the Full Bench's approach that section 153 permits amendments to cure such defects. |
| Govinda Kaviraj Purohita v. Gauranga Saw (1924-45 M.L.J. 231) | Took a contrary view (to Full Bench) and was expressly overruled by the Full Bench in Adusumilli Gopalakrishnayya as recorded in the opinion. | The court notes that Govinda Kaviraj was overruled and therefore not followed. |
| Mahomed Yusuf v. Badsha Sahib (1929-57 M.L.J. 314) | Discussed the proposition that a plaint filed against a dead person is a nullity but raised the question whether legal representatives may be added under section 153. | The opinion notes that the decisions reviewed in K. Ismail v. Pavu Amma (and the Full Bench approach) are in line with the view taken in Mahomed Yusuf on the relevant question. |
| Municipal Council, Calicut v. Kunhipathumma | Single-judge decision relied on by petitioners (the court characterises its support as not persuasive because it did not consider the Full Bench authority). | The present court did not follow this single-judge decision since it did not reference the Full Bench decision in Adusumilli Gopalakrishnayya. |
| Mohideen v. V.O.A. Mohamed | Contains observations (described in the opinion) suggesting suits by or on behalf of dead persons might be different; noted by the court to be obiter. | The court treated the observations in Mohideen as obiter and not binding for the present decision. |
| Alabhai Vajsurbhan v. Bhura Bhaya | Bench of Bombay High Court followed the Full Bench decision in Adusumilli Gopalakrishnayya rather than Veerappa Chetty. | The court noted this as one High Court following the Full Bench approach (supporting the view taken by the present court). |
| Bai Pam Vanker v. Maddabai Galhabn Patel (Bhai Pani Vankar / Madhabhai variant in text) | Chagla C.J. preferred the Veerappa Chetty view over the Full Bench decision in Adusumilli when distinguishing facts. | The present court explained that it was not persuaded by the Chief Justice's preference in that case and preferred the view aligning with the Full Bench and other courts. |
| Chatur Prasad v. (name not fully legible in text) | Allahabad High Court decision said to be in accordance with the court's expressed view (i.e., supporting Full Bench approach). | The court cited it as consistent with the view it adopts; no detailed application beyond noting consistency is recorded in the opinion. |
Court's Reasoning and Analysis
The court's analysis proceeds from several settled and contested propositions in the authorities and the statutory text:
- Historical principle: the court reiterated the established proposition (as reflected in older authorities) that a suit cannot properly be instituted against a dead person and that a plaint filed against a dead person is, historically, treated as a nullity.
- Statutory remedial power under section 153, Civil Procedure Code: the court placed emphasis on the enactment of section 153, which authorises the Court to amend any defect or error in any proceeding in a suit at any time and to make all necessary amendments for determining the real question or issue. The court interpreted this provision as sufficiently wide to permit the Court to implead legal representatives of a deceased defendant where that course is necessary to determine the real issues, so long as the suit against those representatives is not barred by limitation.
- Interaction with earlier case-law: the court examined earlier decisions which had taken a stricter view (notably Veerappa Chetty v. Tindal Ponnen) and explained that those decisions were rendered prior to the statutory scheme containing section 153 and, in the court's view, cannot stand alongside the Full Bench decision in Adusumilli Gopalakrishnayya v. Adivi Lakshmana Rao. The court concluded that Veerappa Chetty is impliedly overruled by the Full Bench's approach once section 153 is taken into account.
- On Order 1, rule 10: the court acknowledged a conflict of opinion in the authorities about whether a suit filed against a dead person equates to a suit filed against the "wrong person" for the purposes of Order 1, rule 10(1). The court expressed an inclination to the view that a suit against a dead person cannot be regarded as a suit instituted against the wrong person (i.e., it is a distinct category), but the court did not finally decide this issue.
- On Order 1, rule 10(2): the court accepted the respondent's submission (advanced by Sri Vasant Rao Mukhedkar) that there was considerable force in the contention that Order 1, rule 10(2) might permit impleading legal representatives to effectively protect rights. However, because the court was satisfied that section 153 already permitted impleading in the circumstances, it found it unnecessary to rely on Order 1, rule 10(2) as the basis of its decision.
- Limitation: the court emphasised that impleading under section 153 is permissible "so long as the suit against them is not barred by limitation." It observed that on the facts of the case the suit was not time-barred as against defendants 3 to 7 at the date of the application.
Holding and Implications
Holding: The Civil Revision Petition was dismissed. The court concluded that the learned Judge below was correct in allowing the application to add defendants 3 to 7 and the Civil Revision fails and is dismissed with costs. The opinion closes with the notation "Revision dismissed."
Implications (as stated or directly inferable from the opinion)
- The court treated section 153, Civil Procedure Code, as a sufficiently wide statutory provision to permit amendment to bring legal representatives of a deceased defendant on record as parties, provided that the suit against those representatives is not barred by limitation.
- The court expressed the view that earlier authorities (notably Veerappa Chetty v. Tindal Ponnen) which took the opposite view cannot stand after the enactment of section 153 and are impliedly overruled by the Full Bench decision in Adusumilli Gopalakrishnayya v. Adivi Lakshmana Rao.
- The decision did not rest on Order 1, rule 10(2) despite finding merit in that argument; the primary basis was section 153. The court did not make a final, conclusive determination on the precise application of Order 1, rule 10(1) and left some aspects as a matter where opinions differ among courts.
- The immediate practical effect on the parties was that defendants 3 to 7 could be impleaded as legal representatives of the deceased 1st defendant and that the revision challenging that impleading was dismissed with costs. The opinion does not purport to lay down a broader, novel precedent beyond its interpretation favouring the Full Bench approach to section 153 and its application to the facts before it.
Revision dismissed.
Acknowledgement in the opinion: The court expressed indebtedness to learned counsels Sri V.S. Ashoka and Sri Vasant Rao Mukhedkar for their assistance in placing authorities before the Court.
This is an application to revise the Order of the Fourth Additional Judge, City Civil Court, Hyderabad, allowing I.A No. 58 of 1958, in O.S No. 120 of 1958 and directing the addition of defendants 3 to 7 as parties to the suit. The suit was originally instituted against defendants 1 and 2. The 1st defendant is the father and the 2nd defendant is the son. The liability was incurred by the 1st defendant and the 2nd defendant was the surety. It transpires that before the institution of the suit, the 1st defendant was dead. So, an application was filed by the respondent to bring on record defendants 2 to 7 as the legal, representatives of the 1st defendant. Subsequently, another application was filed under Order 1, rule 10, Civil Procedure Code, to implead defendants 3 to 7 as parties to the suit. Following the decision of the Madras High Court in K. Ismail v. Pavu Amma . 1955-2 M.L.J 184 the learned Judge impleaded defendants 3 to 7 as parties to the suit, the 2nd defendant, one of the legal representative of the 1st defendant, having already been made a party to the suit. As against the order of the Fourth Additional Judge, City Civil Court’ Hyderabad, the Civil Revision has been filed to this Court.
2. Sri V.S Ashoka, the learned Advocate for the petitioners strenuously conned that the decision of the Madras High Court in K. Ismail v. Pavu Amma, is of correct and that the suit having been instituted against a dead person, his ??? representatives, defendants 3 to 7, ought not to have been impleaded as ??? in the suit either under section 153 or Order 1, rule 10, Civil ??? Code. The interesting question that arises for decision is whether either ??? the terms of section 153, Civil Procedure Code or under Order 1, rule 10, ??? Procedure Code the legal representatives of the deceased 1st defendant may ??? as parties to the suit.
3. ??? is clear law that a suit cannot be instituted under the provisions of the ??? Code against a dead person. Such a suit or memorandum of ??? against a dead person is nullity. As early as 1869, it has been held ??? Peacock and Mr. Justice Mitter in Mohun Chunder Koondo v. Azeem ???,2 that the Court has no jurisdiction to entertain a suit instituted dead person. When asimialr question arose for consideration in Veerappa ??? Tindal Ponnen3, a Division Bench of the Madras High Court held that there ??? in the Civil Procedure Code of 1882 to authorise the institution of a ??? the deceased person and that the Courts had no jurisdiction to allow ??? in such a case to be amended by substituting the name of the ??? deceased even when the suit was instituted bona fide and in ignorance of the defendant. In the particular case, there was only a single defendant, ??? servation in the course of the judgment that on the death of the defendant on had abated appears in my opinion, to be erroneous. No question of abate ??? when the suit had been instituted against a defendant who was dead ??? to the institution of the suit. The question of abatement falls to be considered only if the defendant dies after the institution of the suit. The Law of Limitation prescribes a period for bringing on record the legal representatives of the defendant who died subsequent to the institution of the suit. The decision referred to supra was followed by a subsequent Bench of the Madras High Court in Rasa Goundan v. Pichariuthu Pillai. The correctness of the decision in Veerappa Chetty v. Tindal Ponnen, was challenged before the Full Bench of the Madras High Court in Adusumilli Gopalakrishnayya v. Adivi Lakshmana Rao. One of the decisions referred to by Sri P. Bapiraju appearing on behalf of the respondent was the decision in Veerappa Chetty v. Tindal Ponnen. It appears from the report of arguments in Gopalakmhna v. Lakshmana Rao that the decision was distinguished as having been rendered before the new Code, i.e, before the introduction of section 153, Civil Procedure Code in the Code of 1903. section 153, Civil Procedure Code enacts that 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 that all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. The question that arose for decision before the Full Bench was whether the cause title of the appeal presented against a dead person might be returned for amendment and re-presentation. The decision in Govinda Kaviraj Purohita v. Gauranga Saw . 1924-45 M.L.J 231 taking a contrary view was expressly overruled. The learned Judges made it clear that if the appeal against the legal representatives was out of time the delay in presentation might be excused under the terms of section 5 of the Limitation Act. There is no doubt no express reference to the decision in Veerappa Chetty v. Tindal Ponnen, in the body of the judgment. But I have no doubt that the decision in Veerappa Chetty v. Tindal Ponnen, cannot stand side by side with the decision of the Full Bench is Adusumilli Gopalakrishnayya v. Adivi Lakshmana Rao. I am clearly of opinion that the Bench decision in Veerappa Chetty v. Tindal Ponnen, cannot be regarded as good law after the enactment of section 153 in the new Code and is impliedly overruled. The view taken by Anantakrishna Ayyar, J., in Chuambaram Chittiar v. Narayanaswami ??? . 1928-M.W.N 240. that the decision in Veerappa Chetty v. Tindal Ponnen is still good law, is in ??? opinion, erroneous. The terms of section 153, Civil Procedure Code are ??? applicable to suits and the Full Bench applied the terms of section 153, Civil ??? Code read with section 141, Civil Procedure Code to an appeal ??? a dead person. Reference was next made to the Full Bench decision Madras High Court in Mahomed Yusuf v. Badsha Sahib . 1929-57 M.L.J 314. At page 896, ??? is made to the decision in Veerappa Chetty v. Tindal Ponnen. The ??? stated at page 896 that no suit can be instituted against a dead person ??? plaint filed against a dead person is a nullity is unobjectionable. But the ??? is whether the legal representatives may not be added as defendants provisions of section 153, Civil Procedure Code. All the decisions ??? reviewed by Govinda Menon, J., in K. Ismail v. Pavu Amma . 1955-2 M.L.J 184, and clined to agree with his view. The learned Judge rightly pointed ??? case has gone to extent of holding that “if a fresh suit filed on the date ??? amendment was made is not barred, still the Court is deprived of the of amending which results in making the suit a new one filed afresh”. ??? in Veerappa Chetty v. Tindal Ponnen was rightly distinguished on ??? that it was prior to the enactment of section 153, Civil Procedure Code his view that there is nothing which prevents the trial Court from construing, the as if it was filed against new parties on the date the application for amendment was made. It is clear on the facts of this case that on the date when the application for adding defendants 3 to 7 was filed, the suit against them was not barred by limitation.
4. Sri V.S Ashoka, the learned Advocate for the petitioners, next relied on the decision of a single Judge of the Madras High Court in Municipal Council, Calicut v. Kunhipathumma and certain observations in Mohideen v. V.O.A Mohamed. I am not inclined to follow that decision as no reference was made to the Full Bench decision of the Madras High Court in Adusumilli Gopalakrishnayya v. Adivi Lakshmana Rao. The observations in Mohideen v. V.O.A Mohmed that suits by or on behalf of dead persons might stand on a different category and that there is no question of misdescription in such suits are only obiter.
5. As to whether the decision in Veerappa Chetty v. Tindal Ponnen is still good law or has been overruled by the decision of the Full Bench in Adusumilli Gopalakrishnayya v. Adivi Lakshmana Rao there is a conflict of authority in the several High Courts. In Alabhai Vajsurbhan v. Bhura Bhaya, a Bench of the Bombay High Court followed the decision, of the Full Bench in Adusumilli Gopalakrishnayya v. Adivi Lakshmana Rao in preference to the decision in Veerappa Chetty v. Tindal Ponnen. The Bench decision of the Bombay High Court was distinguished by Chagla, C.J, in Bai Pam Vanker v. Maddabai Galhabn Patel. He preferred to follow the decision of the Bench in Veerappa ??? v. Tindal Ponnen to the Full Bench decision of the Madras High Court in ??? v. Lakshmana Rao. The reason given by him for distinguishing ??? decision viz., that the appeal was filed as against two respondents is, in ???, a distinction without any difference. I am inclined to think that the view ??? by the Bench of the Bombay High Court is correct and I am not inclined to ??? the view of the learned Chief Justice in Bhai Pani Vankar v. Madhabhai ???. The view taken by the Allahabad High Court in Chatur Prasad v. ??? is in accordance with the view expressed by me. So far as the Calcutta, ??? and Nagpur High Courts are concerned, there are divergent views taken ??? question. It is unnecessary for me to deal with all the cases referred to ??? learned Advocate for the petitioners in the view taken by me.
6. ??? clearly of the view that the terms of section 153, Civil Procedure Code ??? wide and it is open to the Court to implead the legal ??? defendants so long as the suit against them is not barred by ???
7. ??? the applicability of the terms of Order 1, rule 10(1), Civil ??? there is again difference of opinion in the several Courts. Some ??? the view that a suit filed against a dead person is not a suit filed wrong person while other Courts take a different view. Though it is not ??? me to give my final opinion, I am inclined to take the view that a ??? against a dead person cannot be regarded as a suit instituted wrong person.
8. ??? Rao Mukhedkar invokes the provisions of Order 1, rule 10(2), ??? Code and contended that for the purpose of effectually ??? rights of parties, the legal representatives, defendants 3 to 7, might be impleaded as defendants to the suit. There is considerable force in this contention. As I am clear that under section 153, Civil Procedure Code, they might be impleaded as parties, it is unnecessary for me to rest my judgment on the provisions, of Order 1, rule 10(2), Civil Procedure Code.
9. In the result, the Civil Revision Petition fails and is dismissed with costs.
10. Before concluding my judgment, I must express my indebtedness to Sri V.S Ashoka and Sri Vasant Rao Mukhedkar for having carefully looked into all the decisions and placed those authorities before me.
Revision dismissed.
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