Ali Mohd. Khan vs Vijay Tulsi

Anand, C.J.—The plaintiff respondent filed a suit against Mohd Sadiq Khan. During the pendency of the suit, the plaintiff-respondent filed

an application for bringing the proper defendants on record. The application proceeded on the grounds that Mohd Sadiq Khan defendant against

whom the suit had been initially filed had died about 5 years before the institution of the suit, and, therefore, to proceed with the suit, his legal

representatives were required to be brought on record. The application was, therefore, for substitution of the defendants. Vide order dated 21st of

November, 1977, the learned trial Court despite resistence from the petitioner herein permitted the respondent to amend the plaint and bring on

record the legal representatives of Mohd. Sadiq Khan, who had on the date of filing of the suit already died and to proceed with the suit. The

order of the trial Court has been impugned in this revision petition.

On October, 16, 1979, a learned single Judge of this Court (Mr. Justice Mufti Bahaud-Din Farooqi, as his Lordship then was) being of the

opinion that there was no judgment of the Supreme Court of India or of this Court on the question whether a suit filed against a dead person can

proceed by bringing the legal representatives of the deceased on record later on or not framed the following question and referred the case for

adjudication to the Bench : --

Where a suit is filed against a dead person, can the plaintiff be allowed subsequently to amend the plaint and substitute the legal representatives in

place of the deceased defendant?

We have heard Mr. B. A. Khan who has projected the view that the suit filed against a dead person being in law a nullity, no amendment could

be allowed for substitution of the dead person, subsequent to the filing of the suit. We find force in this submission.

3A. In C. Muttu v. Bharath Match Works, Sivakasi AIR 1964 Mys 293, it was held by a Division Bench of the Mysore High Court, after a

review of a catena of authorities on the subject, that a suit filed against a dead person is a nullity and the Court has no jurisdiction to grant an

application under Order 1, Rule 10 or Order 22, Rules 4 and 9, C. P.C subsequent to the filing of the suit. We are in respectful agreement with the

view of the Mysore High Court and find that the view of the Court receives support from certain observations of the Supreme Court of India

reported in Seth Hiralal Patni Vs. Sri Kali Nath, .

In Seth Hiralal Patni Vs. Sri Kali Nath, , Chief Justice Sinha, speaking for the Court opined :--

The validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking in

inherent jurisdiction in the sense that it would not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the

defendant was dead at the time the suit had been instituted or decree passed.

In view of the aforesaid pronouncement of the Supreme Court, the question referred to in the earlier part of this judgment must be answered in

the negative and it must be held that where a suit is filed against a dead person it is a nullity and the plaintiff cannot be allowed subsequently to

amend the suit and substitute the legal representatives in place of the defendant. It appears that the observations of the Supreme Court were not

brought to the notice of the learned single Judge when the case was referred to the Division Bench.

In view of what has been said above, this revision petition must succeed and it is hereby allowed. The order of the learned Sub Judge, City

Magistrate, Srinagar, dated 21st of November, 1977 allowing the substitution of the defendant who had died before the filing of the suit against him

by his legal representatives, being an order without jurisdiction is hereby quashed.

Since, the respondent has not appeared, there shall be no order as to costs.