Karam Kaur vs Dalip Singh (Dead) Through Legal Representatives and another

M.L. Singhal, J.—Heard.

Smt. Karam Kaur widow of Ajit Singh son of Bishan Singh resident of village Bhin-der Kalan, Tehsil Zira through general attorney Mukhtiar Singh son of Malkiat Singh son of Bishan Singh resident of Bhinder Kalan Tehsil Zira filed suit in March 1993 against Dalip Singh and Ranjit Singh sons of Anokh Singh son of Nathu Singh residents of Mandiranwala, Tehsil Moga to the effect that she is owner in possession of the land measuring 3 kanal 19 marls as detailed in the heading of the plaint situated in the area of Moga Mohla Singh, Tehsil Moga and for permanent injunction restraining them from interfering with her possession of the said land and also from alienating, transferring or disposing of the said land. During the pendency of the suit, an application was moved by the Plaintiff for bringing on record the L Rs of Deceased Dalip Singh namely Smt. Bhagwan Kaur (wife). This application was resisted by Ranjit Singh saying that this application is not maintainable as Dalip Singh was dead since before the institution of the suit and suit against a dead person is a nullity. It was stated that Dalip Singh had died about 2 years prior to the institution of the suit. Vide order dated 14.9.1993, Subordinate Judge Second Class, Moga held that this application is not maintainable since Dalip Singh was dead since before the institution of the suit and the suit against a dead person is a nullity. He posted the case for the written statement of Ranjit Singh Defendant to 19.10.1993. Not satisfied with this order, Smt. Karam Kaur has come up in revision to this Court.

Learned Counsel for the Respondent submits that no application under Order 22 Rule 4 Code of CPC was maintainable for bringing on record the L Rs of Dalip Singh as the Provisions of Order 22 Rule 4 Code of CPC come in only when the legal representative is sought to be brought on record in place of the one who dies during the pendency of the suit. He submits that in this case, Dalip Singh was dead since before the institution of the suit and, therefore, the provisions of Order 22 Rule 4 Code of CPC would be inapplicable. He submits that suit against a dead person is a nullity. In support of this submission that a suit against a dead person is nullity, he seeks to draw support from Cuttack Municipality Vs. Shyamsundar Behera, .

In my opinion, the learned trial court justifiably refused to bring on record the L Rs of Dalip Singh who was dead since before the institution of the suit treating the suit to be "nullity" so far as a dead person is concerned.

This revision fails and is dismissed. If, however, the Plaintiff moves an application for the withdrawal of the suit with permission to file fresh suit regarding the same subject matter against the heirs of Dalip Singh and Ranjit Singh, learned trial Court will allow her this permission as the suit as framed suffers from a formal defect.