TRAVANCORE DEVASWOM BOARD Vs. KANDARU VASU DEVARU
HIGH COURT OF KERALA
TRAVANCORE DEVASWOM BOARD
KANDARU VASU DEVARU.
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(1.) C. M. P. No. 1757 is an application in A. S. 122 of 1954 for impleading as a respondent therein defendant 14 in the court below and amending the cause-title of the appeal accordingly, and C. M. P. 1758 of 1954 is a petition for excusing the delay in making the application to implead defendant 14. In the appeal petition there was only one respondent, namely, defendant 8. He had died even before the suit was decreed in the court below, and his legal representative had been impleaded as additional defendant 14 in that court itself. But this fact was not noticed when the appeal was filed in this court, and so only defendant 8, and not defendant 14 was made respondent in the appeal petition. On the discovery of the mistake the appellant has applied for the impleading of defendant 14 as respondent in the place of defendant 8 and for excusing the delay in making the application. The two applications are opposed on the ground that the court has no jurisdiction to grant an application for impleading when the appeal itself has been filed against a deceased person and that the question of bona fides or mala fides of the appellant is not material in this connection. Reliance was placed in support of this contention on the decision of the Sind Chief Court in Municipal Corporation of Karachi v. Baradio jumoo Mughal (A. I. R. 1946 Sind 20 ). That decision related to an application for impleading in an original suit filed against a deceased person. There is vital difference so far as this matter is concerned, between an original suit and an appeal. As pointed out by Mulla (J), in Rampartab Brijmohandas v. Gourishanker kashiram (A. I. R. 1924 Bom. 109), a suit brought against a deceased person is a nullity; and so it is not permissible either to amend such a suit or to implead an additional defendant under O. I, R. 10, C. P. C. An appeal is only a continuation of the suit, and if the suit is not a nullity and the necessary defendants had been impleaded in the suit, a bona fide error committed in the petition of appeal as regards the name of the respondent can be allowed to be amended under S. 153, C. P. C. A Full Bench of the Madras High Court has held gopalakrishnayya v. Lekshmana Rao (A. I. R. 1925 Mad. 1210 F. B.): "if an appeal is presented against a person who was dead at the date of the presentation the court may under S. 153, C. P. C. permit the cause-title to be amended or may return the appeal memorandum for amendment and representation. Although the appeal may be incompetent owing to the wrong person being named as respondent, the court which deals with it is acting in a proceeding in a suit, and as such has full power under S. 153 to direct an amendment of the appeal memorandum".
(2.) FOLLOWING this Madras decision the Allahabad High court has also held in Chatur Prasad Bara Bacha v. Baijnath Prasad (A. I. R. 1930 all. 131) that if the name of a dead man appears in the petition of appeal instead of the names of his legal representatives, through a bona fide error, the petition of appeal can be allowed to be amended and his legal representatives brought on record. FOLLOWING these cases, I hold that a bona fide error committed in the petition of appeal in writing the name of a deceased person as the respondent can be allowed to be rectified by allowing an amendment under S. 153, C. P. C. and directing his legal representatives to be impleaded in his place. I, therefore, allow both these petitions and direct defendant 14 in the court below to be impleaded in the appeal and the cause-title of the appeal to be amended accordingly. Defendant 14 in the court below who opposed these applications will pay the appellant Rs. 25 as costs incurred in connection with the payment of advocate's fee for these petitions.;
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