ALI MOHD KHAN Vs. VIJAY TULSI

JUDGEMENT

(1.) The plaintiff respondent filed a suit against Mohd. Sadie Khan. During the pendency of the suit. the plaintiff-respondent filed an application for bringing the proper defendants on record. The application proceeded on the Grounds that Mohd. Sadiq Khan defendant against whom the suit had been initially filed had died about 5 years before the institution of the suit, and therefore, to proceed faith the suit, his legal representatives were required to be brought on record. The application was, therefore, for substitution of the defendants. Vide order dated 21st of November, 1977, the learned trial Court despite resistance from the petitioner herein permitted the respondent to amend the plaint and bring on record the legal representatives of Mohd. Sadiq Khan, who had on the date of filing of the suit already died and to proceed with the suit. The order of the trial Court has been impugned in this revision petition.

(2.) On October, 16, 1979, a learned single Judge of this Court (Mr. Justice Mufti Bahaud-Din Farooqi, as his Lordship then was) being of the opinion that there was no judgment of the Supreme Court of India or of this Court on the question whether a suit filed against a dead person can proceed by bringing the legal representatives of the deceased on record later on or not framed the following question and referred the case for adjudication to the Bench:-

(3.) We have heard Mr. B.A. Khan who has projected the view that the suit filed against a dead person being in law a nullity, no amendment could be allowed for substitution of the dead person, subsequent to the filing of the suit. We find force in this submission. 3A. In C. Muttu v. Bharath Match Works, Sivakasi, AIR 1964 Mys 293, it was held by a Division Bench of the Mysore High Courts after a review of a catena of authorities on the subject, that a suit filed against a dead person is a nullity and the Court has no jurisdiction to grant an application under Order I, R. 10 or Order 22, Rules 4 and 9, C. P.C subsequent to the filing of the suit. We are in respectful agreement with the view of the Mysore High Court and find that the view of the Court receives support from certain observations of the Supreme Court of India reported in AIR 1962 SC 199.