It is necessary to lay stress on the words "any right.... is alleged to exist" in both the rules. Both Rr. 1 and 3, in my opinion, contemplate living plaintiffs and defendants. When a person dies, the right to sue survives if it is capable of survival to his legal representatives and exists in them and not in the dead man. Rules 1 and 3 of O. 1, Civil P.C. no doubt apply to a case where the right has come into existence by way of survival, but the plaintiff or the defendant, as the case may be, must then be dead person's legal representatives at the time of the presentation of the plaint and not the dead person. The maxim actio personalis moritur cum persona has exceptions, the procedure in respect of which is provided by O. 22, Civil P.C., which says that where a right to sue survives in favour or against a dead person, that right can be enforced by or against the legal representatives of the dead person. If a person dies before the suit is instituted against him, the right to sue or be sued is not an existing right but a right which has survived, and persons competent to sue or be sued are the legal representatives in whom or against whom alone the right to sue exists under the provisions of R. 1 or R. 3 of O. 1, Civil P.C. When, therefore, a suit is filed against a dead man, it is a nullity. Neither Order 1, nor O. 22, Civil P.C. applies to enable a person to sue a dead man. Order 1, Civil P.C., deals with parties to a suit; it does not and cannot contemplate a dead person as a party to a suit. If O. 1 does not permit the filing of a suit against a dead person, as I hold it does not, it follows that o. 1, R. 10, Civil P. 0., cannot apply. Order 1, Rule 10, Civil P.C., begins with the words "Where a suit has been instituted in the name of the wrong person as plaintiff......." "When a suit is filed against a dead man, it cannot be said that it has been filed against a wrong person. I am aware of the fact that some High Courts in India have treated a dead person as a wrong person, but with respect to the learned Judges who have so treated a dead person, I am unable to adopt that view. There is a clear distinction between a right which exists and a right which survives. I have no difficulty in coming to the conclusion that where a suit has been filed against a dead man, the Court is powerless to act under any of the provisions of the Civil Procedure Code, in order to dispose of it according to law, because no rights exist against a dead person, but if they survive, they come to exist in the legal representatives who alone can sue or be sued.
IN THE HIGH COURT OF SIND
IN THE HIGH COURT OF SIND
Municipal Corporation of Karachi V. Baradio Jumoo Mughal
Date: 21.12.1944
Citation:AIR(33) 1946 Sind 23
1. In this suit a preliminary objection has been taken, namely, that the suit filed by the Municipal Corporation of Karachi against one Baradio son of Jumoo was a nullity, the said Baradio son of Jumoo having died before the institution of the suit, Mr. Prem Khilnani who appears for the Municipal Corporation admits that the said Baradio was dead at the time of the presentation of the plaint. The plaint was presented on 29th March 1943, whereas Baradio died on 1st February 1943. After the institution of the suit against the said Baradio, the plaintiffs' advocate made an application under O. 22, Rr. 3 and 9, Civil P.C., and s. 5, Limitation Act, to bring on record one Alu Remoo whom the plaintiffs described as the mutwalli appointed in place of the deceased Baradio, and as heir and legal representative of the deceased Baradio. On this application a notice was ordered to issue. On 14th February 1944, this Alu Remoo appeared in person before the Second Registrar of this Court and admitted that he was the mutwalli of the property in suit and said that he had no objection to his being substituted as the defendant. Upon this admission the Second Registrar granted the application.
2. Now although the Second Registrar's order was that Alu Remoo should be substituted as the defendant, a correction was made in the plaint in the form of an addition of the following words after the name of the original defendant Baradio son of Jumo:"..., since deceased by his heirs and legal representative Aloo Remoo". In due course, this Alu Remoo filed his written statement and issues were framed by me on 5th September 1944. The second issue framed was :
Did Baradio died before the filing of the suit or after the tiling of the suit? What is the effect if he died before the suit?
3. Mr. Prem Khilnani for the Municipal Corporation, contends that it is not a necessary consequence of the filing of a suit against a dead man that it should be dismissed and that upon an application made under O.1, R. 10, Civil P.C., read with s. 153, Civil P.C., the Court has the power to substitute a living person as a defendant for a dead person. Mr. Prem concedes that his application under O. 22, Rr. 3 and 9, Civil P.C., read with s. 5, Limitation Act, was not an appropriate application in the facts of this case. It certainly was not an appropriate application because O. 22, Civil P.C., refers to a case where a party to a suit dies after the suit has been filed and not to a case where the suit has been filed against a dead person. The heading of O. l, Civil P. O, is "Parties to suits". Order 1, R. 1, Civil P.C., deals with the joinder of plaintiffs. It says :
Who may be joined as plaintiffs?
"All persons may be joined in one suit as plaintiffs whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons brought separate suits, any common question of law or fact would arise."
Rule 3 of O. 1, Civil P.C., deals with the joinder of defendants. It says;
Who may be joined as defendants?
"All persons may be joined against whom any right to relief in as defendants? respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons, any common question of law or fact would arise."
It is necessary to lay stress on the words "any right.... is alleged to exist" in both the rules. Both Rr. 1 and 3, in my opinion, contemplate living plaintiffs and defendants. When a person dies, the right to sue survives if it is capable of survival to his legal representatives and exists in them and not in the dead man. Rules 1 and 3 of O. 1, Civil P.C. no doubt apply to a case where the right has come into existence by way of survival, but the plaintiff or the defendant, as the case may be, must then be dead person's legal representatives at the time of the presentation of the plaint and not the dead person. The maxim actio personalis moritur cum persona has exceptions, the procedure in respect of which is provided by O. 22, Civil P.C., which says that where a right to sue survives in favour or against a dead person, that right can be enforced by or against the legal representatives of the dead person. If a person dies before the suit is instituted against him, the right to sue or be sued is not an existing right but a right which has survived, and persons competent to sue or be sued are the legal representatives in whom or against whom alone the right to sue exists under the provisions of R. 1 or R. 3 of O. 1, Civil P.C. When, therefore, a suit is filed against a dead man, it is a nullity. Neither Order 1, nor O. 22, Civil P.C. applies to enable a person to sue a dead man. Order 1, Civil P.C., deals with parties to a suit; it does not and cannot contemplate a dead person as a party to a suit. If O. 1 does not permit the filing of a suit against a dead person, as I hold it does not, it follows that o. 1, R. 10, Civil P. 0., cannot apply. Order 1, Rule 10, Civil P.C., begins with the words "Where a suit has been instituted in the name of the wrong person as plaintiff......." "When a suit is filed against a dead man, it cannot be said that it has been filed against a wrong person. I am aware of the fact that some High Courts in India have treated a dead person as a wrong person, but with respect to the learned Judges who have so treated a dead person, I am unable to adopt that view. There is a clear distinction between a right which exists and a right which survives. I have no difficulty in coming to the conclusion that where a suit has been filed against a dead man, the Court is powerless to act under any of the provisions of the Civil Procedure Code, in order to dispose of it according to law, because no rights exist against a dead person, but if they survive, they come to exist in the legal representatives who alone can sue or be sued.
4. If this distinction is borne in mind, the decisions which have been cited at the bar in favour of the view that a Court has power to grant or refuse an application under O. 1. R. 10, Civil P.C., in a suit which has been filed against a dead man, become, in my opinion, of little value. Mr. Prem has relied upon a Full Bench decision of the Madras High Court in ('25) 12 A.I.R. 1925 Mad. 1210 : 49 Mad. 18 (F.B.), Gopal Krishnayya v. Lakshmana Rao. But the point for decision in that case was entirely different. In that case an appeal was presented against a dead person. The Court acted under S. 153, Civil P.C. It is scarcely an authority for the proposition that an application under o. 1, R. 10, Civil P.C., can be granted when a suit has been filed against a dead man. ('30) 17 MANU/UP/0060/1929 : A.I.R. 1930 All. 131 : 123 I.C. 824, Chatur Prasad v. Baijnath Prasad was also a case in which the memorandum of appeal was amended under the provisions of O. 1, R. 10, Civil P.C., read with ss. 107 and 153, Civil P.C. Niamatullah J. says;
Although an appeal directed against a dead man is not an appeal, if the name of such dead man appears on the petition of appeal instead of his legal representatives, through a bona fide error, the petition of appeal can be allowed to be amended under the provisions of O. 1, R. 10, read with Ss. 107 and 153.
5. The only decision which has a direct bearing on the facts before me, is to be found in ('38) 25 MANU/NA/0114/1938 : A.I.R. 1938 Nag. 458 : 175 I.C. 911, Karimullah Khan v. Bhanu Pratap Singh. It is a judgment of a single Judge, Niyogi J. With all respect to learned Judge, I am unable to agree that a dead person is a "wrong person" within the meaning of O. 1, R. 10, Civil P.C. In the view I take of the terms of O. 1, Rr. 1 and 3, Civil P.C., it is unnecessary to give other reasons for disagreeing with the learned Judge of the Nagpur High Court. ('37) 24 MANU/NA/0062/1937 : A.I.R. 1937 Nag. 173 : I.L.R, (1937) Nag. 514 : 171 I.C. 703, Raghunathsingh Nand-lal v. Shri Deo Radhaballabhji, has also no application to the facts of this case: There an application was made to substitute the word "deity" for the word ''Mandir". No question there arose for the substitution of a living person for a dead person. ('32) 19 A.I.R. 1932 Lab. 305 : 133 I.C. 277, Mehar Singh v. Labh Singh, was an appeal against a dead respondent, It has no application to the facts before me. Mr. Prem has drawn my attention to a decision of two Judges of the Court of the Judicial Commissioner of Sind in ('37) 24 A.I.R. 1937 Sind 47 : 168 I.C. S60, Gordhandas Vishindas v. Rijhibai, a decision which does not find place in the authorised law reports, in which Rupchand and Haveliwala A. J. Cs. observed :
Order 22, R. 10 of the Code had no application as the person sued was already dead before the institution of suit. If the plaintiff, being ignorant of the death of defendant, joined him as a party to the suit he was in no worse position than that in which he would have been had he failed to join defendant if alive. He could at any time before the period of limitation for instituting the suit against defendant join him if he was alive and could likewise join persons who had succeeded to his estate if he was dead. A person in whom the property of deceased vested could, therefore, be joined as party to the suit under O. 1, R. 10.
With respect to the learned Judges; I am unable to agree that when a suit against a a dead person has been filed, the person in whom the property of the deceased has vested can be made a party under the provisions of O. 1, R. 10, Civil P.C. The suit is a nullity and the Court has no jurisdiction to dispose of it according to law. The decision does not take adequate notice of the words used in O. 1, Rr. 1 and 3, Civil P.C. The whole of O. 1, Civil P.C. applies to existing rights and not rights which have survived. The surviving rights come to exist in the legal representatives who alone can sue or be sued. Upon this interpretation of O. 1, Civil P.C. I feel justified in not accepting the view taken by Rupchand A.J.C. Rupchand A.J.C. appeared to think that the exercise of jurisdiction under O.1, R. 10, Civil P.C. in a suit filed against a dead man depended upon whether there was bona fides or mala fides. In my opinion, the question of bona fides or mala fides does not arise if O. 1. R. 10, Civil P.C. has no application to the so-called suits filed against dead persons. The judgment of (Mulla J. in ('24) 11 A.I.R. 1924 Bom. 109 : 85 I.C. 464, Rampartab Brijmohandas v. Gavrisbanker Kashiram, besides being directly in point, is also very instructive. Mulla J. held that the suit having been filed against a dead man was a nullity from its inception. He observed :
The suit being a nullity, the writ of summons issued in the suit, by whomsoever accepted, is also a nullity. Similarly- any order made in the suit allowing amendment of the plaint by substituting the legal representative of the deceased as defendant and allowing the suit to proceed against him is also a nullity. It is immaterial that the suit was brought bona fide and in ignorance of the death of such person.
6. In ('08) 31 Mad. 86, Veerappa Chetty v. Tindal Ponnan, two eminent Judges of the Madras High Court held :
There is nothing in the Code of Civil Procedure to authorise the institution of a suit against a deceased person and the Courts have no jurisdiction to allow the plaint in such a case to be amended by substituting the names of the representative of the deceased, even when the suit is instituted bona fide in ignorance of the death of the defendant.
7. The earliest case on the subject is the case in ('69) 3 Beng. L. R. (A. C.) 233, Mohan Chand Kandu v. Azim Kazi, where Sir Barnes Peacock C. J. said (p. 235) :
We are of opinion that the defendant in the original suit having died before the filing of the plaint against him, the Court had no jurisdiction to decide upon the case.
8. In ('34) 21 MANU/NA/0014/1933 : A.I.R. 1934 Nag. 55 : 148 I.C. 241, Hazarimal Bholaram v. Shriramchandraswami Dewasthan, a Judge of the Nagpur Judicial Commissioner's Court, Subhedar, A.J.C., dealing directly with the question of a suit against a dead person held that the words "wrong person" in O. 1, R. 10, Civil P.C. cannot be construed to mean a dead person. In ('37) 24 A.I.R. 1937 Sind 92 : 31 S.L.R. 406 : 168 I.C. 784, Noorbhoy Alibhoy Halai v. Secretary of State, a case subsequent to the one in which Rupchand, A.J.C. had taken a different view, he said:
Where a suit is instituted in the name of a dead person, the Court cannot substitute a living person's name in place of that of the dead person under O. 1, R. 10, Civil P.C.
9. In ('33) 20 MANU/TN/0296/1932 : A.I.R. 1933 Mad. 454 : 143 I.C. 596, Municipal Council, Calicut v. Kunhipathumma, Pandalai J. held:
Where a plaint is filed against a person who is in fact dead at the time of presentation no application by way of amendment or bringing on record legal representatives can be validly made because the whole proceeding is void and has no effect whatever.
10. In ('14) 1 A.I.R. 1914 Cal. 895 : s, Bejoy Chand v. Amulya Charan, Fletcher and Richardson JJ., held :
The provisions as to the substitution of the heirs of a deceased defendant as parties to suit in his place apply only to cases where the original defendant was alive at the date of the institution of the suit.
11. I would accordingly hold that where A suit is filed against a dead person, a Court has no jurisdiction to grant an application under O. 1, R. 10, Civil P.C. or under O. 22, Rr. 4 and 9, Civil P.C. or do any other act authorised by the Code of Civil Procedure. The result is that the preliminary objection is upheld and the suit is dismissed. I do not propose to make any order as to costs in the facts of this case. The plaintiffs are a statutory body, and it is likely that they filed this suit against Baradio in ignorance of his death.
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