Kaley and Others vs Harpal

G.C. Garg, J.—Harpal and another filed a suit against Kaley for declaration and injunction on 17.7.1984. An application dated 21.5.1985 for impleading the legal representatives of Kaley defendant (deceased) was moved on behalf of the plaintiffs. It seems that the said application was not finally disposed of and the legal representatives of Kaley continued to contest the suit. The trial court decreed the suit by judgment and decree dated 5.5.1987.

Mr. C.R. Goel, The Additional District Judge, Faridabad set aside the judgment and decree dated 5.5.1987 of the trial court and remitted the case back for further proceedings in accordance with law either after impleading the legal representatives or by rejecting the application moved for that purpose. The trial court, on remand, after considering the respective contentions of the parties allowed the application and ordered the legal representatives of Kaley deceased defendant to be brought on record by order dated 16.11.1990. It is against this order of the trial court that the present revision has been preferred by the legal representatives of Kaley who were ordered to be brought on.the record.

The sole contention of the learned Counsel for petitioners is that Kaley defendant had died en 23.1.1988 in village Panhera Kalan. Tehsil Ballabgarh district Faridabad and the death certificate of Kaley deceased is already on the record of the cases as Exhibit D1. The learned Counsel thus contends that the sit filed against Kaley on 17.4.1984 i.e. after one year and three months of his death is a nullity as the same could not have been filed against a dead person. He further submits that the application under Order 22 Rule 4 of the CPC for bringing the petitioners on record as legal representatives of Kaley deceased could not have been allowed. It is also submitted by the counsel that the application filed by the plaintiffs under Order 1 Rule 10 of the Code was dismissed on 28.5.1985 and no appeal or revision was preferred against that order.

The learned Counsel for the petitioners in support of his above submissions placed reliance on Jogindar Singh and Others Vs. Krishan Lal and Others, ; Cuttack Municipality Vs. Shyamsundar Behera, and Pratap Chand Mehta Vs. Krishna Devi Meuta, , for the proposition that if a suit is filed against a sole defendant who was dead at the time of filing the same, the suit was a nullity and the plaintiff could not be allowed to subsequently amend the suit by substituting the legal representatives in place of defendant. I have the submission of the learned Counsel in the light of the observations made in the above judicial precedents relied upon and am of the considered opinion that the legal representative of a deceased defendant can be substituted only if the defendant was alive on the date of filing of the suit. It stands established on the record that Kaley defendant had died about one year and three months prior to the filing of the suit and, therefore, the application under Order 22 Rule 4 of the CPC seeking to bring on record the legal representatives of Kaley could not have been allowed. Thus, the trial court has clearly acted illegally and with material irregularity, while allowing the application and ordering the petitioners to be brought on record as legal representatives of Kaley deceased. The suit filed against the defendants was, therefore, a nullity.

For the foregoing discussion, the revision succeeds. The order of the trial court under revision is set aside and the suit filed against Kaley defendant (deceased) is dismissed being nullity. No costs.