INDANA INTERNATIONAL LTD Vs. APOLONIA MIGUEL FERNANDES

JUDGEMENT

(1.) Admit. THE decision in this revision application must necessarily be ex-parte since there are no living respondents and the petitioner/plaintiff has been denied permission to withdraw the suit filed by him against dead persons, who are arrayed as Respondents here. The matter is therefore dealt with in exercise of the extraordinary jurisdiction of this Court in addition to the revisional jurisdiction under Section 115 of the Code of Civil procedure.

(2.) This Civil Revision Application is directed against the Order dated 5. 10. 2006 refusing permission to the petitioner to withdraw Civil Suit no. 29/05/b. By the impugned order the learned trial Court has refused permission to the plaintiff to withdraw the suit with liberty to file a fresh suit against the legal representatives.

(3.) The petitioner had sought permission to withdraw the suit against the defendants Smt. Santana Miguel Fernandes and Miss Apolonia miguel Fernandes i. e. Respondents No. 1 and 2 here, on the ground that they were dead when the suit was filed. It appears that the Bailiff report on the summons issued to the defendants also shows that the defendants have expired. In these circumstances, the plaintiff expressed his intention to withdraw the suit with permission to file a fresh suit on the same cause of action. This request has been rejected on the ground that a suit against a dead person is a nullity and his legal heirs cannot be brought on record. According to the learned trial Court to filing of a suit against a dead person being a nullity cannot be said to be a formal defect under Order 23, Rule 1 (3) of C. P. C. Order 23 Rule 1 (3) reads as follows :-