1. These two Civil Revision Petitions are filed against the orders passed in I.A No. 784 of 1975 filed for correcting the provision of law, and I.A No. 265 of 1975 filed to bring on record the legal representatives of the first defendant in the suit. The court below had dismissed the petitions on the ground that the suit was filed on 14th November, 1974 on the basis of a promissory note executed by the first defendant, whereas he died on 5th October, 1974, itself, and therefore a suit filed as against a dead person is ‘non est’ and there can be no question of legal representatives being brought on record. Even, if they are to be brought on record as legal representatives, the date of the suit will be the date on which they were brought on record and it will not date back to the date on which the suit was originally filed, i.e, 14th November, 1974.
2. The counsel for the petitioner contends that so far as the I.A No. 784 of 1975 is concerned, it was filed for correcting the cause title as “Petition under Ss. 151 and 153, C.P.C” instead as petition under O. 22, Rule 4, C.P.C as originally filed. It is claimed that the petition was in fact filed invoking the provisions under Ss. 151 and 153, C.P.C and the mentioning of a wrong provision of law will not result in the petition being disallowed, as has been held by this court and also by the Supreme Court. On this aspect, there could be no dispute, and hence the court below was in error in rejecting I.A 784 of 1975.
3. Regarding I.A No. 265 of 1975, the court below rejected it on the ground that when a suit filed against a dead person is amended, by substituting the legal representatives, the suit must be treated as instituted on the date of the application for amendment, and therefore, I.A No. 265 of 1975 having been filed on 7th February, 1975, the suit is barred by limitation.
4. The counsel for the petitioner contends that the court below had not appreciated the correct position of law and he refers to the decision in Veerappa Chettiar v. Tindal Ponnan . I.L.R 31 Mad. 86., Kannagara Ismail v. Palayat Kappadakkal Povu Ammal . 1955 2 M.L.J 184=68 L.W 580, Rajan and others v. Dinshaji Dadabhai Italia . A.I.R 1961 A.P 239, Rastely Payya Lakshmamma v. Raja Manukanniah . A.I.R 1976 A.P 65 and also to the amendment effected to S. 21 of the Limitation Act by adding a proviso to it, to show that a suit filed against a dead person, cannot be ‘non est’, and if the legal representatives are brought on record subsequently, the date of filing of the suit will not be the date on which the petition to bring on record the legal representatives was filed, but would be the date on which the original plaint was instituted. No doubt in Veerappa Chettiar v. Tindal Ponnan this court had taken the view that a suit filed as against the dead person cannot be maintained and the court has no jurisdiction to substitute the representatives of the deceased as defendants and allow the suit to proceed as against them. But later on, when the matter came up before this, court, in Kannagara Ismail v. Palayat Kappadakkal Povu Ammal Govinda Menon, J., referring to not only Veerappa Chettiar v. Tindal Ponnan but also to the Full Bench decision in (sic) Gopalakrishnayya v. Lakshmana Rao . 49 Mad. 18=23 L.W 418 F.B and other decisions held that under S. 153, C.P.C, the court can under such circumstances permit the cause title to be amended or may return the appeal memorandum for amendment and re-presentation. The legal representatives may represent the dead person and ask for excusing delay in presentation and it is a matter of discretion whether it would excuse the delay or not. On this aspect, the Full Bench in Gopalakrishnayya v. Lakshmana Rao had dealt with the matter, which came up in appeal. The learned Judge held that the principles laid down therein can apply to the case before him and it would be applicable also to suits filed as against the legal representatives of a dead person. The three decisions of the Andhra Pradesh High Court have rested on the powers conferred under S. 153, C.P.C and have chosen to follow the decision readered by Govinda Menon, J, and it has been held that the decision in Veerappa Chettiar Tindal Ponnan does not bring about the correct position of law. The earlier decisions have been rendered prior to the amendment to the Civil Procedure Code and also to the amendment effected to S. 21 of the Limitation Act. The decision rendered by the Supreme Court in Ramprasad v. Vijayakumar in my opinion, virtually, decides the point that arises for consideration in these Civil Revision Petitions. In paragraph 19 it refers to the powers of the court to add a new plaintiff at any stage of the suit in the absence of the statutory provisions like S. 22 of the Limitation Act of 1908 and that S. 22 stood in the way of the powers of the Court. The Supreme Court observed that:
“The rigour of this law has been mitigated by the proviso to S. 21(1) of the Indian Limitation Act, 1963 which enables the court on being satisfied that the omission to include a new plaintiff or a new defendant was due to a mistake made in good faith, to direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. Unfortunately, the proviso to S. 21(1) of the Indian Limitation Act, 1963, has no application to this case, and we have no power to direct that the suit should be deemed to have been instituted on a date earlier than 4th November, 1958 “.
Therefore, even the Supreme Court felt that in matters like this, the court should have the legal representatives brought on record as new defendants in the place of a dead person, and the date of the filing of the suit should date back to the date of its original presentation into the Court. The Supreme Court observed that S. 22 of the Limitation Act stood in the way of the powers of the court, which would mean that the court would always try to uphold about the validity of the presentation of the plaint, and the fact that the defendant was dead at the time of the filing of the suit, cannot absolve his legal representatives from being made liable for the debt, provided the claim is established on its merits. The counsel for the respondents refers to the decision rendered in Muthu v. Bharath Match Works, which had taken the view that a suit filed as against a dead person is a nullity. He also refers to the decision rendered in Surajbhan v. Balwan Singh and Chotaram v. Deepchand to show that the ‘good faith’ which is referred to in proviso to S. 21 of the Limitation Act must be averred and proved. It is his contention that in this case, the affidavit filed in support of the petition does not make any reference about good faith, and it has not been proved, and therefore at least on this ground, the order of the court below deserves to be set aside. I do not think it would be proper to hold that merely because in the affidavit, the depondent had not used the words ‘good faith’ it has not been made out. What is essential to be made out is whether the petition itself had been filed in good faith or not. Apart from being averred, the circumstances of the matter can always be taken into account to find out whether the party has acted in good faith. In this matter the suit was filed on 14th November, 1974 and the first defendant had died on 5th October, 1974. There is nothing to show that the plaintiff was aware of the death of the first defendant and knowing quite well about it, he has still persisted in filing the suit as against the dead person. As soon as he came to know about the death of the first defendant, he has taken out I.A No. 265 of 1975 on 7th February, 1975, itself for bringing on record the legal representatives of the first defendant. The circumstances and the promptness with which the petitioner had taken action clearly show that he had acted in good faith and thus it stands proved. On the aspect as to whether on impleading the legal representatives, the suit is to date back to the original presentation of the plaint, or only to the date on which the I.A has been filed, in view of the proviso having been added to S. 21 of the Limitation Act, it is clear that the court taking in to account the circumstances of the matter can always direct that the date of the filing of the suit shall date back to the original presentation of the plaint provided the application has been taken out in ‘good faith’. In this matter, I have already held that the application has been filed in good faith, and, therefore the suit laid as against the legal representatives, who are the respondents herein, shall date back to the date on which the plaint was presented originally, i.e. 14th November, 1974. In view of the decision in Ramprasad v. Vijayakumar I hold that the orders of the court below deserve to be set aside and these Civil Revision Petitions are allowed. No costs.
VCS