Decided on February 09,1999

M Surda Corp Appellant


M.Y.KAWOOSA, J. - (1.) BY way of this civil revision petition, order dated 4th Jan., 1989 passed by learned City Judge, Jammu, has been questioned. By virtue of the impugned order, learned City Judge, Jammu, has allowed an application for amendment of plaint. He has allowed the plaintiff to delete the name of defendant No.1 Abdul Rehman and has also allowed to array M/S Kashmir Commercial Agency, 1 -B/C Road Jammu as defendant on the ground that Abdul Rehman has been arrayed as defendant inadvertantly with a bonafide mistake. It has been pleaded that Abdul Rehman was not the tenant at the time of institution of the suit but on the other hand M/S Kashmir Commercial Agency was tenant of the suit premises. Suit was filed by respondent for ejectment against Abdul Rehman C/o. M/S Kashmir Commercial Agency. Court held that when there is mis -description in the plaint regarding the defendant, this can be corrected by way of amendment and such amendment will not change the nature of the suit.
(2.) HEARD learned counsel for the parties. Mr. Bhagotra counsel for the petitioner, has urged before me that such amendment could not be allowed for the suit was filed against the dead person because Abdul Rehman had already died at the time of institution of suit. Secondly he has taken me to the notice issued by the respondent to the M/S Kashmir Commercial Agency prior to the institution of the suit but the suit was not filed against that party but was filed against Abdul Rehman.
(3.) I have considered the argument advanced before me. Learned counsel for the petitioner has urged that application has not been filed bonafidely. Basically, respondent could not have instituted the suit against the dead person and the dead person cannot be substituted by another living person because the suit in the eye of law against the dead person is nullity. He has relied on 1985 JKLR 631. I have gone through this case. This case is distinguishable from the present one. In the above case facts are that suit was filed against one Mr. Mohd Sidiq Khan who was alleged to have died 5 years before institution of the suit. The plaintiff filed an application for bringing the legal representatives of the deceased on the record. It was resisted on the ground that the suit filed against the dead, person is nullity and no question arises for bringing the legal representative of the dead person on record. It is in this context High Court allowed the revision petition which was filed against the order of trial judge who had allowed the substitution of legal heirs. Here in the present case matter does not pertain to substitution legal heirs of the deceased. It is a simple matter that the plaintiff wants to delete the person which is his choice to array a person as a defendant or not. This court cannot debar the plaintiff from deleting a person against whom no relief is claimed by the plaintiff and again cannot debar a party from getting another person impleaded as a party if that person is any way involved in the litigation. Contention of the learned counsel for the petitioner is that dead person cannot be deleted and in his place another person cannot be substituted, does not appeal me to be sound version. Even if it is admitted that the defendant No.1 is dead, in that case also the suit cannot abate because the defendant No.2 is surviving. Learned counsel for the petitioner also contended that the matter is not straight because rent -deed is executed with Abdul Rehman, he is shown as tenant. Notice was issued to M/S Kashmir Commercial Agency but the suit was filed against the Abdul Rehman. All these questions and objections, we do not debar the petitioner to raise. He can raise all these pleas in his written statement when he files it. Regarding the maintainability of the suit, it is open to him to challenge the suit on any ground and in any manner whatsoever. He is not debared to do so. But at this time this court cannot go into merits. I see no infirmity in the orders passed by the trial court. The revision petition is dismissed.;

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