1996(1) ALL MR 99
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

A.P. SHAH, J.

Sureshchandra B. Agrawal & Others Vs. Shri. Mansukbhai H. Doshi & Others.

Writ Petition No.887 of 1995

11th October, 1995

Petitioner Counsel: Mr. A.K. ABHYANKAR
Respondent Counsel: P.N. Shah

Civil P.C. (1908), O.22, R.4, O7, R.11 - Suit filed against sole defendant who was dead at time of filing of the suit - Can plaintiff be subsequently allowed to amend suit and substitute legal representatives in place of defendant - Limitation Act (1963), S.21.

The test to be applied in such case, is whether the mistake in filing the suit was made in good faith or it is on account of any neglect or contumacy to the conduct of the plaintiffs. If there is no neglect or lack of bona fides on the part of the plaintiffs, such application will be liable to be granted. [Para 3]

The plaintiff had sent the notice of termination to the defendant by registered post A/D before filing the suit and the acknowledgement was received back with the defendant's signature, though the defendant was not alive at the relevant time. Even the suit summons was accepted on behalf of the defendant. In these circumstances, the plaintiff was clearly led to believe that the defendant was alive at the time of filing of the suit. The Plaintiff came to know about the death of the defendant only from the learned Advocate of the other side in 1983 and immediately thereafter the present application was made for bringing the heirs on record, held no negligence can be attributed on the part of the plaintiff. The plaintiff has prosecuted the suit bona fide and, therefore, there was no reason to interfere with the impugned order granting application for bringing the heirs on record. [Para 4]

Cases Cited:
AIR 1953 Bom. 357 [Para 2]
AIR 1988 Delhi. 267 [Para 2]
AIR 1964 Mysore 293 [Para 2]
AIR 1978 Gujrat 33 [Para 2]
(JT 1993 (4) SC) 192 [Para 3]


JUDGMENT

JUDGMENT :- This petition under Article 227 of the Constitution takes exception to the order passed by the Small Causes Court, Bombay, granting notice taken out by the respondent-landlord for bringing the heirs of the deceased tenant on record.

2. The short question, which is canvassed by Mr. Abhyankar, learned counsel for the petitioner, is whether it is permissible for the Court to bring the heirs of the deceased on record where, admittedly the defendant has died prior to the suit. Mr. Abhyankar contends that the suit filed against the sole defendant, who was dead at the time of filing of the suit, is a nullity. Therefore, Mr. Abhyankar contends that the plaintiffs cannot be allowed subsequently to amend the suit and substitute legal representatives in place of the defendant. Mr. Abhyankar relies upon the judgment of this Court in Mahalu Shidappa v. Shankar Dadu (AIR 1953 Bombay 357). Mr. Abhyankar also places reliance on the judgments in Pratap Chand v. Krishna Devi (AIR 1988 Delhi 267), C.Mattu v. Bharath Match works (AIR 1964 Mysore 2933) and Godavariben v. Parikh Somalal (AIR 1978 Gujrat 33). Mr. Abhyankar says that the Courts below have proceeded on an erroneous basis that such a plaint can be amended by substituting the legal heirs in place of the deceased defendant.

3. Before I deal with the contentions raised by Mr. Abhyankar, I may mention that Mr. Shah, learned counsel for the respondents, also relied upon the judgments of some other High Courts taking a view that the heirs can be brought on record in such situation. It is not necessary to refer to those judgments, because, in my opinion, the question is no longer res integra, as it is squarely covered by a recent decision of the Supreme Court in Karuppaswamy and others v. C. Ramamurthy (JT 1993 (4) SC 192). The Supreme Court has referred to case law bred in various High Courts on the subject as to whether the suit filed against the dead person is non est and whether the dead person can be included and legal representatives can be added as a party to the suit. The Supreme Court has opined that the correct answer to these issues lies in the proper consideration of the provisions of Section 21 of the Indian Limitation Act, 1963 (Section 22 of the old Limitation Act, 1908). The Supreme Court observed in paragraph 5 of the judgment:

"5. A comparative reading of the proviso to sub-section (1) shows that its addition has made all the difference. It is also clear that the proviso has appeared to permit correction of errors which have been committed due to a mistake made in good faith but only when the court permits correction of such mistake. In that event its effect is not to begin from the date on which the application for the purpose was made, or from the date of permission but from the date of the suit, deeming it to have been correctly instituted on an earlier date than the date of making the application. The proviso to sub-section (1) of Section 21 of the Act is obviously in line with the spirit and thought of some other provisions in Part III of the Act such as Section 14 providing exclusion of time of proceeding bona fide in court without jurisdiction, when computing the period of limitation for any suit, and Section 17(1) providing a different period of limitation starting when discovering a fraud or mistake instead of the commission of fraud or mistake. While invoking the beneficient proviso to sub-section (1) of Section 21 of the Act an averment that a mistake was made in good faith by impleading a dead defendant in the suit should be made and the court must on proof be satisfied that the motion to include the right defendant by substitution or addition was just and proper, the mistake having occurred in good faith. The court's satisfaction alone breaths life in the suit."

Now, therefore, the test, which is to be applied in such case, is whether the mistake in filing the suit was made in good faith or it is on account of any neglect or contumacy to the conduct of the plaintiffs. If there is no neglect or lack of bona fides on the part of the plaintiffs, such application will be liable to be granted.

4. Now let us consider the facts of the present case in the light of the decision in Karuppaswamy's case (supra). The plaintiffs are the trustees of the Trust known as "Vishvva Vastralaya prayogik Sangh". They have filed the present suit on various grounds under the Bombay Rent Act including the ground that the Trust bona fide requires the property for its purposes. On perusal of the record, it is seen that the Trust had sent the notice of termination to the defendant by registered post A/D before filing the suit and the acknowledgement was received back with the defendant's signature, though the defendant was not alive at the relevant time. Even the suit summons was accepted on behalf of the defendant. In these circumstances, the Trust was clearly led to believe that the defendant was alive at the time of filing of the suit. The trustees came to know about the death of the defendant only from the learned Advocate of the other side in 1983 and immediately thereafter the present application has been made for bringing the heirs on record. In my opinion, no negligence can be attributed on the part of the trustees. The Trust has prosecuted the suit bona fide and, therefore, there is no reason to interfere with the impugned order granting application for bringing the heirs on record. The petition is, therefore, dismissed. No order as to costs.

Petition dismissed.