SURESHCHANDRA B AGRAWAL Vs. MANSUKBHAI H DOSHI

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution takes exception to the order passed by the Small Causes Court, Bombay, granting notice taken out by the respondent-landlord for bringing the heirs of the deceased tenant on record.

(2.) THE short question, which is canvassed by Mr. Abhyankar, learned Counsel for the petitioner, is whether it is permissible for the Court to bring the heirs of the deceased on record where, admittedly the defendant has died prior to the suit. Mr. Abhyankar contends that the suit filed against the sole defendant, who was dead at the time of filing of the suit, is a nullity. Therefore, Mr. Abhyankar contends that the plaintiffs cannot be allowed subsequently to amend the suit and substitute legal representatives in place of the defendant. Mr. Abhyankar relies upon the judgment of this Court in (Mahalu Shidappa v. Shankar Dadu) A. I. R. 1953 Bombay 357. Mr. Abhyankar also places reliance on the judgments in (Pratap Chand v. Krishna Devi) A. I. R. 1988 Delhi 267, (C. Mattu v. Bharath Match Works) A. I. R. 1964 Mysore 293, and (Godavariben v. Parikh Somalal) A. I. R. 1978 Gujarat 33. Mr. Abhyankar says that the Courts below have proceeded on an erroneous basis that such a plaint can be amended by substituting the legal heirs in place of the deceased defendant.

(3.) BEFORE I deal with the contentions raised by Mr. Abhyankar, I may mention that Mr. Shah, learned Counsel for the respondents, also relied upon the judgments of some other High Courts taking a view that the heirs can be brought on record in such situation. It is not necessary to refer to those judgments, because, in my opinion, the question is no longer res integra, as it is squarely covered by a recent decision of the Supreme Court in (Karuppaswamy and others v. C. Ramamurthy) J. T. 1993 (4) S. C. 192. The Supreme Court has referred to case law bred in various High Courts on the subject as to whether the suit filed against the dead person is non est and whether the dead person can be included and legal representatives can be added as a party to the suit. The Supreme Court has opined that the correct answer to these issues lies in the proper consideration of the provisions of section 21 of the Indian Limitation Act, 1963 (section 22 of the old Limitation Act, 1908 ). The Supreme Court observed in paragraph 5 of the judgment :