JIWARAM Vs. HARHET

JUDGEMENT

(1.) This second appeal has been filed against the appellate judgment and decree of the Additional Commissioner, Jaipur, dated 22.3.58 in a case relating to ejectment.

(2.) When this appeal was presented originally in the Board on 23.6.58, Harhet was impleaded as the respondent. On 17.12.58 the appellant applied for deletion of Harhets name on the ground of his death and substitution of the names of his three sons, Shivcharan, Kishori and Kalwa. All these persons have objections to this substitution on the ground that Harhet had died on 18.6.58 i.e. prior to the presentation of the appeal and as the appeal was presented against a person who had already left this mortal world no substitution can be done legally. It has also been argued that the appellant had come to know of the demise of Harhet on 16.7.58 and as no steps were taken for about 5 months for bringing the legal heirs of the deceased no record the appeal should abate and its abatement should not be set aside.

(3.) We have heard the learned counsel for the parties and have examined the record as well. It has not been denied before us by the learned counsel for the appellants that Harhet had in fact died prior to the date on which the memorandum of appeal was presented in the Board. His contention, however, is that as the case amounts to a wrong description of the defendant the names of the sons may be brought on record. We are, however, not prepared to subscribe to this view as the consensus of authority is entirely opposed to it. We may refer to a number of decisions in this context. In A.I.R. 1953 Bombay 336 Chagla C J. held that an effective order under O.l, r.10 C.P.C. can only be made provided there is an appeal before the court. But if the appeal is a nullity such as when it is preferred by his pleader after his death, then any order made in that appeal is equally a nullity. The appeal thus being a nullity an order for substitution of a legal representative in place of the deceased appellant cannot be made," In the present case the appeal was filed against the respondent who was dead and as such it would also be a nullity and no question of substitution can possibly arise in this case In A.I.R. 1955 Mad., 294 it was held that the principle that a mis -description of a party could be corrected by amendment of plaint cannot obviously be applied in the case of suit instituted by or on behalf of dead persons. In AIR 1946 Sind 20, it was held that a dead person is not a wrong person within the meaning of the rule and a court in such a case has no jurisdiction to grant an application under O.l, r.10 or under 0.22 rr. 4& 9 C.P.C. A number or rulings on the point have been noted in Chitleys C.P.C. at page 2001, Note 40, 1957 edition. In AIR 1955 Mad , 644 a suit was brought against a dead person. Legal representatives were ordered to be brought on record in ignorance of the fact the defendant was dead when the suit was filed and the decree was held not to void ab initio. This case is clearly distinguishable from the present on the ground that in that case the suit was not barred by limitation against the legal representatives on the date of application for impleading them and it was held that the suit should be considered as having been freshly instituted against the legal representative on that date. In the present case, however, the appeal had become time barred on the date of the application for impleading the legal representatives of the deceased. We, therefore, hold that the repondent Harhet having died prior to the presentation of memorandum, the appeal is a nullity and no question of substitution of legal representatives arises in the case. For these reasons the appeal is hereby dismissed.