RANGRAO VYANKATESH DESHPANDE Vs. KASHINATH DHONDU

JUDGEMENT

(1.) THIS is an application under Section 115, Civil P.C., to revise an order dated 26-7-1944 passed by the Subordinate Judge, 2nd Class, Pusad, in Civil Suit No. 219-A of 1943. The suit out of which this proceeding arises was filed by Kashinath and Sadashiv, in whose favour the sale deed dated 28-10-1941 had been executed, on the allegation that field S. No. 313 recited in the sale deed was a mistake for s. No. 312. They instituted the suit on 3-12-1943 for rectification of the instrument, after Sadashiv Lohar had died on 30-11-1943. His sons and widow applied for substitution as his legal representatives and the lower Court allowed the substitution by order dated 3-7-1944. On the next day the defendants contended that the suit, which purported to be filed by a dead person, was an absolute nullity and that the order allowing substitution was illegal. They also prayed for the dismissal of the suit as a whole on the ground that the cause of action for the suit was one and indivisible. The lower Court conceded that the substitution could not be made under Order 22, Rule 3, Civil P.C., as the suit so far as Sadashiv was concerned was not properly filed, he was dead on the date the plaint was presented. But it held that his legal representatives were entitled to be brought on the record under Order 1, Rule 10, Civil P.C.

(2.) THE lower Court in taking the view that the suit was governed under Order 1, Rule 10 followed my decision in Karimullah v. Bhanu Pratap Singh A.I.R. 1938 Nag. 458 in which I had observed that the applicability of Order 1, Rule 10 does not depend upon "the wrong person" being alive or dead and that it only contemplates that a suit should have been filed in the name of wrong person irrespective of whether he is living or a dead person. My attention is invited to Municipal Corporation, Karachi v. Baradio A.I.R. 1916 Sind 20 where my view was criticised. I may point out that my observations were made with reference to the particular facts of the case then before me and the observations themselves show that if a suit is filed in the name of a dead person as the sole plaintiff the plaint is void; and it was particularly pointed out that the presentation was improper. The main question for consideration under Order 1, Rule 10 is whether the suit was properly instituted. In other words whether the plaint was properly presented. Now in a suit them may be only one plaintiff or more than one. If the sole plaintiff or all the plaintiffs instituting a suit is or are dead, the plaint is one that is presented by a dead person or persons. The institution of the suit therefore is void and is of no effect. No question of mistake or misdescription of party is involved in such a case so as to attract the application of Order 1, Rule 10.

(3.) IN the present case there appears to be no difficulty in the application of Order 1, Rule 10, Civil P.C. The suit was properly presented so far as the plaintiff Kashinath was concerned and he could prosecute the suit on his own account as if he was the sole plaintiff in the case. The suit vis-a-vis Sadashiv who was dead will certainly be void and his legal representatives cannot be brought on the record under Order 22, Rule 3. But if Kashinath thinks that his suit is likely to fail in the absence of the representatives of the deceased Sadashiv, it is perfectly open to him to apply to the Court for his legal representatives being impleaded in the suit as his co-plaintiffs provided the cause of action in their favour is not extinguished by flux of time. The Court has power under Sub-rule (2) of Rule 10 of Order 1 to add the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. This would be the position had the suit been originally instituted by Kashinath alone and it could not be different because he wrongly included the name of a dead person in his plaint. I therefore agree with the lower Court as to the applicability of Order 1, Rule 10, Civil P.C., and dismiss the application with costs. Counsel's fees Rs. 15.