HAZARIMAL BHOLARAM Vs. SHRIRAMCHANDRASWAMI DEWASTHAN RAMPAILI

JUDGEMENT

(1.) 1. One Seth Hazarimal had filed Civil Suit No. 199 of 1930 in the Court of the Subordinate Judge, 2nd Class, Balaghat, for a certain declaratory relief. The suit was dismissed and an appeal therefrom was also dismissed by the Additional District Judge on 29th July 1932. Seth Hazarimal's agent instructed Rai Bahadur Chowdhry, by a power dated 4th November 1932, to prefer a second appeal against the appellate Court's judgment and decree to this Court. Second Appeal No. 525 of 1932 was accordingly presented by Rai Bahadur Chowdhry on 7th November 1932. It subsequently transpired that Seth Hazarimal had already died on the evening of 5th November 1932. Hazarimal's legal representatives therefore presented an application, on 15th July 1933, praying for substitution of their names in the place of the deceased appellant under Order 1, Rule 10(1), Civil P.C. The question for decision is if the substitution as prayed for by the applicants could be ordered. Order 1, Rule 10(1), Civil P.C., runs as under: Where a suit, has been instituted in the Dame of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2.) THE contention of the learned counsel for the applicants is that the present appeal having been instituted in the name of a wrong person as appellant through a bona fide mistake, the names of the applicants should be substituted in place of the original appellant. The short question for decision then is whether the words "wrong person" appearing in the aforesaid rule could be construed to mean ?a dead person." In Veerappa Chetty v. Tindal Ponnen (1908) 31 Mad 80 it was held that there is nothing in the Code of Civil Procedure to authorise the institution of a suit against a deceased person and the Courts have no jurisdiction to allow the plaint in such a case to be amended by substituting the names of the representatives of the deceased, even when the suit is instituted bona fide and in ignorance of the death of the defendant. In a later case a Full Bench of the same High Court ruled that in a case where the name of a deceased person is shown as the respondent the memorandum of appeal should be amended by the substitution of his legal representative, under Section 153, Civil P.C.: Gopala Kristnayya v. Lakshmana Rao AIR 1925 Mad 1210. The case of Veerappa Chetty v. Tindal Ponnen (1908) 31 Mad 80 and the other cases following the same view, though cited in the course of the argument, were not however noticed or considered in Gopala Kristnayya v. Lakshmana Rao AIR 1925 Mad 1210.