KANNANGARA ISMAIL Vs. PALAYAT KAPPADAKKAL PAVU AMMA

JUDGEMENT

(1.) The 11th defendant in O. S. No. 1178 of 1945 on the file of the District Munsif's Court, Kozhikode out of which this second appcfil arises is the appellant. The suit was for setting aside the decree in O. S. No. 1150 of 1944 on the ground that the Court had no jurisdiction to pass the same and hence the delivery that followed it is void and inoperative. Both the lower Courts have decreed the suit. The short facts are these. The first defendant Mana had leased out the plaint property on 225- 1920 to one Ukkappan Nair, who was the karnavan of the plaintiffs and defendants 2 to 6 on behalf of their tarwad and to Cheria Chandu the father of defendants 7 to 10 the two named individuals being joint lessees. As rent was in arrears O. S. No. 1150 of 1944 was brought for recovery of possession with arrears of rent from 1936-37 to 1943-44. To that suit the two defendants were the lessees Ukkappan Nair and Cheria Chandu but after summons was taken out it was discovered that both the defendants were dead. Therefore by I. A. No. 4233 of 1944 the legal representatives of the two defendants were brought on record as defendants 2 to 6 and 7 to 10 respectively, who contested the suit on the ground that part of the rent had been paid, that what was paid towards the revenue had been credited towards the rent due, that the price of paddy claimed was excessive and that the plaintiff was not entitled to evict them. Despite these contentions the suit was decreed and in execution of the decree defendant 1 herein recovered possession of the property and thereafter demised it to defendant 11 who was put in possession.

(2.) The allegations in the present suit are, that the decree in O. S. No. 1150 of 1944 was void and did not affect the suit property oti the ground that both the lessees who were impleaded in that suit were dead at the time the suit was filed and despite the knowledge of that fact a false affidavit has been filed in support of the application for bringing on record the legal representatives of the two deceased and it was only on the strength of the averments contained therein that the present defendants 2 to 6 and 7 to 1ft were added as the legal representatives ol the original defendants. It was therefore alleged that the Court had no jurisdiction to bring on record the legal representatives of persons who had died before the institution of the suit for the reason that a plaint filed against dead person cannot be considered to be in existence at all and the whole proceedings were ab initio illegal and void. The plaintiffs also contended that the defendants 2 to 10 were guilty of fraud and negligence in the conduct of the suit in not raising proper pleas which if raised would have non-suited the plaintiff in O. S. No. 1150 of 1944. The present plaintiffs being the other members of the tarwad of defendants 2 to 6 and as Ukkappan Nair was a lessee on behalf of the tarwad are not bound by the decree in O. S. No. 1150 of 1944. As stated already the lower Courts have found that the entire proceedings in O. S. No. 1150 of 1944 were void from the very inception and have decreed the suit and hence the present second appeal.

(3.) That Ukkappan Nair and Cheria Chandu were not alive when the plaint in O. S. No. 1150 of 1944 was filed in Court admits of no doubt and there is no dispute whatever that in ignorance of that fact and on the assumption that they were alive on the date of the suit the District Munsif by I. A. No. 4233 of 1944 ordered their legal representatives to be brought on record. What has now to be considered is how far that procedure is justified in law. There is also no contention that if a suit for recovery of property with arrears of rent were to be filed on the date when the application to bring on record the legal representatives was filed the proper persons against whom such a suit ought to be filed are the proposed legal representatives and that the relie, claimed against such persons would not be barred. In these circumstances, the point for consideration is whether it can be held that the entire proceedings in O. S. No. 1150 of 1944 which was hotly contested by the present defendants 7 to 10 should be deemed to be void ab initio. The proposition of law is well settled that a plaint filed against a dead person is non est and that there are no proceedings that can be deemed to be pending in Court by the filing of such a plaint as there is nothing in the Civil Procedure Code which authorises the institution of such a suit against a deceased person. There is no jurisdiction in the Court to allow the plaint in such a case to be amended by substituting the names of the representatives of the deceased person even when the suit was instituted bona fide and in ignorance of the death of the defendant. Vide the decision in -- 'Veerappa Chetti v. T. Ponnen', 31 Mad 88 (A). It is on this principle that both the lower Courts have held that the entire pro- ceedings in O. S. No. 1150 of 1944 were void and inoperative. It has to be mentioned that Section 153, C. P. C., was not in existence at the time of the decision in 31 Mad 88 (A). Supposing the plaintiff in O. S. No. 1150 of 1944 when apprised of the fact of the death of the persons impleaded as defendants in the plaint before the filing of the suit, took return of the plaint and by using the same stamps scored out the names of the existing defendants and in their place had the proper persons impleaded and presented the plaint as a fresh one, can it be said that such a plaint cannot be treated as instituted on the day on which the fresh presentation was made. In my opinion there is nothing wrong in that procedure. All the cases in which it has been held that the Court has no power to amend the plaint filed against a deceased person by substituting the names of the representatives of the deceased person arose out of the applications for amendment of the plaint made at a time when the suit if instituted would have become barred. The result of the amending would put back the suit to the date of the original presentation of the plaint and thereby save the period of limitation. No case has been cited before me at the bar in which it has been held that even if a fresh suit filed on the date when the amendment was made is not barred, still the Court is deprived of the power of amending which results in making the suit a new one filed afresh. I shall now examine the cases on the point.