RAJA DEBI BAKHSH SINGH Vs. HABIB SHAH

JUDGEMENT

(1.) The appellant s father, Raja Muneshar Bakhsh Singh, instituted a suit against the respondent for payment of a sum amounting to Rs. 15,908. The plaint was filed on the 3rd May 1911, in the Court of the Deputy Commissioner of Bahraich. The respondent filed his written statement on the 31st May 1911. On the 4th July the following occurred before the Deputy Commissioner :-" On the case being called to-day the plaintiff was not present. I therefore dismiss the claim. Costs upon plaintiff."

(2.) The fact, unknown to the Deputy Commissioner, was that the plaintiff was dead. He had died about a fortnight before, namely, on the 21st June. It is plain to their Lordships that, upon this being pointed out, it was the duty of the Deputy Commissioner to rectify the situation. This duty Mr. Clarke, the Deputy Commissioner, seems fully to have recognised. It requires no words of their Lordships to show the inapplicability of Rules or Orders dealing with the case of the non-appearance of a suitor to the situation which arises when the suitor is dead. The principle of forfeiture of rights in consequence of a default in procedure by a party to a cause is a principle of punishment in respect of such default, but the punishment of the dead, or the ranking of death under the category of default, does not seem to be very stateable.

(3.) The deceased plaintiff s son took the proper steps to have his name substituted in place of his deceased father under Order XXII, Rule 3, of the Civil Procedure Code. He did so on the 3rd August, which was well within the period of six months limitation under Article 176 of the First Schedule of the Indian Limitation Act of 1908. Some question arose as to the application being time- barred, but the latter was very properly accepted by Mr. Clarke. The appellant had also taken the proper steps to have a report of his succession made under Section 34 of the Rent Act.