LOGANATHA MANDIRI Vs. SESHACHALA NAIDU

JUDGEMENT

(1.) THIS revision is directed against an order passed in I. A. No. 534 of 1982 in O. S. No. 79 of 1982. The plaintiff is the petitioner herein. The plaintiff filed a suit in O. S. No. 79 of 1982 to recover the amount of Rs. 2 ,100 due under a promissory note dated 19. 1. 1979. The suit was filed on 13. 1. 1982. According to the plaintiff, the defendant died on 30. 1. 1982. Therefore, he filed I. ANo. 534 of 1982 under O. 22, Rule 4 of the civil Procedure Code to substitute the proposed parties 1 to 3 as legal representatives of the deceased first defendant and rank them as defendants 2 to 4. Chittoor Municipality issued a death certificate stating that the defendant died on 20. 9. 1981. The trial court pointed out that on the date of filing of the suit Seshachala Naidu was no more. Therefore, no suit can be filed against a dead person. The trial court pointed out that a suit filed against a dead person is a nullity. Reliance was placed upon a decision reported in C. Muttu v. Bharath Match Works, a. I. R 1964 Mysore 293, wherein the decision of the Supreme Court in Hiralal v. Kalinath, AIR 1962 S. C. 199: (1961)2s. C. J. 592: (1961)2m. L. J. (S. C.) 157: (1961)2 An. W. R (S. C. ). 157: (1962)2 S. C. R 747 was reiterated. Relying upon these decisions the trial court held that no amendment can be allowed for substitution of another person. In Order to come to this conclusion the trial court also relied on the decision of the Orissa High Court in Cuttack Municipalityv. Shyamsundar Behra,a. I. R 1977 On. 137: 42 Cut.L. T. 1283. Accordingly, the application filed to bring the legal representatives on record was dismissed by the trial court. It is against this order this revision is filed.

(2.) LEARNED counsel for the petitioner submitted that the trial court failed to note that the application was filed to amend the cause title by adding the parties and the application was not filed to bring the legal representatives on record. The petitioner was under the bona fide impression that the defendant died on 30. 1. 1982 and therefore, the petitioner filed the petition to amend the cause title after his knowledge of the death of the sole defendant. The decisions relied on by the court below have no relevance to the facts of the present case. The court below has not properly understood the scope of the petition and erred in dismissing the petition on the ground that it is not maintainable. LEARNED counsel for the petitioner further submitted that inasmuch as the petition was filed to amend the cause title after the death of the sole defendant, the application cannot be thrown out on the ground that the suit filed against a dead person is a nullity.