CMUTTU Vs. BHARATH MATCH WORKS

JUDGEMENT

(1.) This Revision petition which is directed against the order of the II Addl. Subordinate Judge, South Kanara, Mangalore, in Small cause suit No, 163 of 1958 dismissing the suit with costs, has been referred to a Division Bench by one of us, as it raises' an important question, whether a suit brought against a person who is later discovered to have been dead at the time the suit was filed can be amended by substituting another person as defendant,

(2.) The petitioner filed a suit against one P. K. Periaswamy Nadar, Proprietor, Bharatn Match Works, Sivakasi, on 31-7-1958, for recovery of the sum of Rs. 974-49 nP. with future interest and costs, in the Court of the II Addl. Subordinate Judge, South Kanara, Mangalore. Subsequently it was found that F. K. Periaswamy Nadar, the defendant, had died on 1-6-1958, that is, long prior to the date of the filing of the suit. The petitioner, therefore made an application under Order XXII Rule 4 and Sec. 151 of the C. P. C. on 19-9-1958 and prayed for permission to amend the plaint by deleting the name of P. K. Periasswamy Nadar and substituting the name of S. Than gamani Ammal in the cause title of the plaint and to amend the second paragraph of the plaint Suit-ably as a consequence this amendment. The learned Subordinate Judge allowed the application and permitted the plaint to be amended. Thangamani Ammal was thus brought on record as defendant in the suit and was served with gammons. She filed her written statement raising several contentions against the claim of the petitioner. She inter alia contended that P. K. Periaswamy Nadar, the sole defendant against whom the suit was originally instituted, had died on 1-6-1958 and that the suit filed against him on 31-7-1958 was a suit filed against a dead person and was a nullity and, therefore, no amendment of the plaint could have been allowed permitting the plaintiff-petitioner to implead her as the defendant in the place of P. K. Periaswamy Nadar. She contended that the suit was liable to be dismissed in limine.

(3.) The fact that P. K. Periaswamy Nadar had died on 1-6-1958, that is, long before the suit was filed against him, was not disputed by the respondent. The certified extract from the register of deaths in the Municipality of Shivakasi during the month of June 1958 relating to the date of death of P. K. Periaswamy Nadat was produced and marked as an exhibit in the case. The learned Subordinate Judge heard the parties on the preliminary point regarding the maintainability of the suit against the respondent. After examining the decisions of the several High Courts cited before him, the learned Subordinate Judge held that the suit filed by the petitioner, on 31-7-1958, against the sole defendant P. K. Periaswamy Nadar who had died on 1-6-1958 was a nullity and no application for substitution of the respondent in place of the original sole defendant, could have been allowed and the suit was, therefore, liable to be dismissed. He accordingly dismissed the suit with costs. It is the correctness of this order that is challenged in this revision petition.