Suit against a dead defendant-Null or Still Maintianable?

Introduction

The more we dwell into civil cases, the more interesting scenarios come to light. One such scenario is suit against a dead person. It immediately raises many questions like: Is such a suit maintainable, if maintainable then under what circumstances, whether legal heirs of such a dead defendant can be taken on record under Order 22^{^[1]} or Order I Rule 10^{^[2]} CPC etc. This article is a humble attempt to explain the practicalities and settled position surrounding this topic.

Section 26 of CPC^{^[3]} provides that, every suit is instituted by the presentation of plaint and the person who files the plaint is called Plaintiff. He is the person whose civil rights are violated and claims relief from the court. Initially every suit has two parties. One is plaintiff and the other is defendant. Defendant is the one against whom plaintiff claims the relief and who has caused grievances to the plaintiff. So, basically presence of opposite parties is mandatory for institution of the civil suit. Now, the question arises what happens when the suit is filed against a defendant who was dead on the date of institution of the suit. We will quickly discuss various situations in the following paras.

Single Defendant Dead on the Date of Institution

In Mohun Chunder Koondoo vs Azeem Gazee Chowkeedar^{^[4]}, Sir Barnes Peacock C. J. who delivered the judgment of the Bench held that courts have no jurisdiction to decide the suit filed against a dead person and it is a nullity. This decision was followed by the Madras High Court in Veerappa. Chetty vs Tindal Ponnen, ILR 31 Mad 86 and observed in the Madras case as follows:

It does not appear to have ever been suggested that the issue of a writ against a dead man could be anything but a nullity, and we see no reason for regarding the presentation of a plaint, which under our system corresponds to the issue of the writ, as anything more.

In Cuttuck Municipality vs Shyam Sunder Behara^{^[5]}, where court held that “a suit filed against a dead person is nullity since the beginning.”

If some family member accepted summons on behalf of dead defendant and appeared in the suit whether personally or through an advocate

Hon’ble Mulla J. in Rampratab Brijmobandas vs Gowrishankar Kashiram^{^[6]}, observed thus:

If he (defendant) dies before the suit and a suit is brought against him in the name in which he carried on business, the suit is against a dead man and it is a nullity from its inception. The suit being a nullity, the writ of summons, issued in the suit by whomsoever accepted is also a nullity. Similarly, any order made, in the suit allowing amendment of the plaint by substituting the legal representative of the deceased as defendant and allowing the suit to proceed against him is also a nullity. It is immaterial that the suit was brought bona fide and in ignorance of the death of such person.

Taking on record Legal Heirs under Order 22 Rule 4 CPC-Whether allowed?

Another question that arises is whether the plaintiff’s application under Order 22 Rule 4 read with Section 151 CPC for deleting the name of original defendant and substituting it with his or her heirs can be allowed?

In Pankajbhai Rameshbhai vs Jethbhai Kalabhai Zalavadiya^{^[7]}, it was held by the Hon’ble Apex Court thatthe bare reading of Order 22 Rule 4 of the Code makes it clear that Order 22 Rule 4 of the Code applies only in the case where the death of one of the several defendants or the sole defendant occurs during the subsistence of the suit. If one of the defendants has expired prior to the filing of the suit, the legal representatives of such deceased defendant cannot be brought on record in the suit under Order 22 Rule 4 of the Code.

There is no room for doubt, that the application of the type presented by the plaintiff for deleting the name of original defendant, who was not alive on the date the suit was instituted and for substitution of the name of the heirs in his place, is not maintainable under O.22 R.4 CPC. Various decisions by Hon’ble High Courts lay down that the question as to whether there was a bona fide mistake or ignorance on the part of the plaintiff is foreign to the suit and that no application for substitution of another person as defendant in the place of the defendant who was no more on the date the suit was instituted, as his legal representative on record can be permitted.

Substitution of Legal Heirs in place of Dead Defendant under Order I Rule 10 CPC-Whether allowed?

In Bejoy Chand Mahatap Bahadur vs Amutya Charan Mitra^{^[8]}, a Division Bench of the Calcutta High Court held that the provisions as to the substitution of the heirs of a deceased defendant as parties to the suit in his place apply only to cases where the original defendant was alive at the date of the institution of the suit.

In Sisir Kumar vs Manindra Kumar Biswas^{^[9]}, the Division Bench of the Calcutta High Court followed the above decision and K.C. Das Gupta J. (as he then was) who delivered the judgment observed as follows:

“Sub-rule (2) of O. I Rule 10 is not limited to cases of bona fide mistake. For two parts of this sub-rule provide for two different powers of the court. The first gives the court the power to strike out the name of any party improperly joined as plaintiff or defendant. The second part provides for the addition of a party as the plaintiff or defendant where it appears to the court that such person ‘ought to have been joined’. The use of the words ‘joined’ and ‘added’ is significant. Omission to use the word ‘substituted’ cannot but be considered deliberate. It must, therefore, be held that the power given to the Court under Sub-rule (2) of Rule 10 of Order 1 to add a party contemplates only those cases where there is somebody else as plaintiff or defendant and the effect of bringing on record another person as plaintiff or defendant would be really a case of ‘addition’ of plaintiff or defendant. A case of mere substitution as distinct from addition is not contemplated in Sub-rule (2). If the Court strikes out the names of the defendants and brings on the record the name of another person as sole defendant this will not be a case of addition at all. If there had been some other person on the record as defendant, even after the names of the original defendants were struck out, that would be a case of addition and might be allowed by the Court in proper circumstances.”

In Savitramma vs Nanjundappa^{^[10]}, a Division Bench of the former High Court of Mysore held that when a suit is brought against a person as a sole defendant and that person is found to have died before its institution, the suit is a nullity from its inception and the court has no jurisdiction to substitute as defendant the legal representative of the deceased and allow the suit to proceed against him either under Section 153 or under Order I Rule 10 (2) of the CPC.

This decision was followed by Sadasiva Aiyar and Napiet JJ. in re: Arunachalam Chettiar^{^[11]}, and by Srinivasa Aiyangar, J. in Rasa Goundan vs Pichamuthu Pillai^{^[12]}.

In Municipal Corporation of Karachi vs Baradiojumoo Mughal^{^[13]}, after reviewing the decisions of the several High Courts dealing with this question, held that where a suit is filed against a dead person, a Court has no jurisdiction to grant an application under O. I Rule 10, or under Order 22, Rules 4 and 9 or do any other act authorised by the Civil Procedure Code, as the suit filed against a dead person, is a nullity. His Lordship further held that bona fides or mala fides of the plaintiff are immaterial. Some observations of the Hon’ble Chief Justice in Hira Lal vs Kalinath AIR 1963 SC 199 lend support to this view that a suit filed against a dead person is a nullity.

However, on the other hand, the Apex Court in the case Pankajbhai Rameshbhai vs Jethbhai Kalabhai Zalavadiya^{^[14]} held that “the legal representative of one of the defendants can be impleaded under order 1 rule 10 CPC, even if such defendant expired prior to filing of the suit provided he did not have the knowledge of the same.”

The question before the Hon’ble Apex Court in this matter was whether the legal representatives of one of the defendants can be impleaded under Order 1 Rule 10 of the Code where such defendant expired prior to the filing of the suit, particularly when the application filed by the plaintiff to bring the legal representatives of the deceased on record under Order 22 Rule 4 of the Code was dismissed earlier as not maintainable.

Court firstly explained the O. I R. 10 and said that it enables the Court to add any person as a party at any stage of the proceedings, if the person whose presence in Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision. Order 1 Rule 10 of the Code empowers the Court to substitute a party in the suit who is a wrong person with a right person. If the Court is satisfied that the suit has been instituted through a bona fide mistake, and also that it is necessary for the determination of the real matter in controversy to substitute a party in the suit, it may direct it to be done. When the Court finds that in the absence of the persons sought to be impleaded as a party to the suit, the controversy raised in the suit cannot be effectively and completely settled, the Court would do justice by impleading such persons. Order 1 Rule 10(2) of the Code gives wide discretion to the Court to deal with such a situation which may result in prejudicing the interests of the affected party if not impleaded in the suit, and where the impleadment of the said party is necessary and vital for the decision of the suit.

It further held that the trial Court could have treated the said application filed under Order 22 Rule 4 of the Code as one filed under Order 1 Rule 10 of the CPC, in order to do justice between the parties. Merely because of the non-mentioning of the correct provision as Order 1 Rule 10 of the Code at the initial stage by the advocate for the plaintiff, the parties should not be made to suffer. It is by now well settled that a mere wrong mention of the provision in the application would not prohibit a party to the litigation from getting justice. Ultimately, the Courts are meant to do justice and not to decide the applications based on technicalities. The provision under Order 1 Rule 10 CPC speaks about judicial discretion of the Court to strike out or add parties at any stage of the suit. It can strike out any party who is improperly joined, it can add any one as a plaintiff or defendant if it finds that such person is a necessary or proper party. The Court under Order 1 Rule 10(2) of the Code will of course act according to reason and fair play and not according to whims and caprice. The expression “to settle all questions involved” used in Order 1 Rule 10 (2) of the Code is susceptive to a liberal and wide interpretation, so as to adjudicate all the questions pertaining to the subject matter thereof. In the matter on hand, since the purchaser of the suit property, i.e., defendant no.7 has expired prior to the filing of the suit, his legal representatives ought to have been arrayed as parties in the suit while presenting the plaint. As such impleadment was not made at the time of filing of the plaint in view of the fact that the plaintiff did not know about the death of the purchaser, he cannot be non-suited merely because of his ignorance of the said fact. To do justice between the parties and as the legal representatives of the purchaser of the suit property are necessary parties, they have to be impleaded under Order 1 Rule 10 of the Code, inasmuch as the application under Order 22 Rule 4 of the Code was not maintainable.

So the above ruling says that legal heirs of the deceased person can be added in the array of parties under Order 1 Rule 10 of the Code read with Section 151 of the Code subject to the plea of limitation as contemplated under Order 7 Rule 6 of the CPC^[15] and Section 21 of the Limitation Act^[16], to be decided during the course of trial. It is a settled proposition of law that if a suit is filed against a dead person, the legal representative of the defendants can be impleaded under order 1 rule 10 CPC, provided he did not have the knowledge of the same. So based on the above ruling, “knowledge”of the death becomes the most important component for the purpose of resorting to the provisions of order 1 rule 10. So the important issue is “whether the plaintiff had knowledge regarding the death of the defendant, at the time of filing the suit?”

In my humble opinion the Hon’ble Apex Court’s ruling in Pankaj Bhai case doesn’t in any way overrule or set aside the other rulings of Privy Council and High Court on the above sub topic, the reason being:

Hon’ble Apex Court didn’t discuss any of those rulings in its judgment.
Secondly, there were multiple defendants in the case before apex court and the defendant no. 7 died before the institution of the suit. So it means whenever there are multiple defendants and any among them has already died before institution of the suit, then in such scenario his or her legal heirs can be substituted under O.1 R.10 CPC and suit is not a nullity because other defendants are alive.
Thirdly, the suit was for cancellation of a sale deed and defendant no.7 was the person to whom other defendants has transferred that particular property. So continuing suit in his heirs absence would have impacted their rights in a negative manner as they were necessary party in the suit.
With regard to cases where there is a single defendant the position is clear that the applications under O. 22 R.4 and O.1 R.10 CPC are not maintainable and suit is nullity from the beginning irrespective of the fact of knowledge of the plaintiff in relation to defendant’s death. Mala fides and bona fides doesn’t make any difference here.

Date from which the legal heirs are said to be taken on record

The Court in the case of Karuppaswamy and Ors. vs C. Ramamurthy^{^[17]}, had permitted the plaintiff to modify the application filed by him under Order 22 Rule 4 of the Code to make it an application under the provisions of Sections 151 and 153 of the Code. In the said matter also the suit was filed against a dead person. The Court proceeded further to conclude that the plaintiff has shown good faith as contemplated under Section 21(1) of Limitation Act and hence the impleadment of the legal representatives/heirs must date back to the date of the presentation of the plaint. In the said matter, it was observed thus:

“A comparative reading of the proviso to Sub-section (1) of Section 21 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 beneficent 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.

Institution of a suit against a dead defendant- Is it a formal defect that allows withdrawal of suit?

The question for consideration is as to whether institution of the suit by plaintiff against defendant who had already expired prior to such institution would be a formal defect and would not go to the root of the matter in which case the provisions of Order 23 Rule 1(3) of the CPC would be applicable. The said provision reads as under:

O.23 Rule 1-Withdrawal of suit or abandonment of part of claim– (3) Where the Court is satisfied,

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.

In Indana International Limited vs Santana Miguel Fernandis and Another^{^[18]}, it was held by the Hon’ble Bombay High Court as under:

“The learned trial Court has made a correct observation that the legal heirs of a sole defendant who is dead, cannot be brought on record, since the suit against a dead person itself is a nullity. In fact, it appears that to prevent this, that the plaintiff sought to withdraw the suit itself, which has been denied on the ground that the suit is a nullity.”

Undisputedly, such a suit must be held to be a nullity and therefore not instituted at all. However, it does not follow that the fact that a suit has been filed upon payment of Court fees must be ignored. In such a case, the withdrawal that is sought by the plaintiff must be viewed as a request for withdrawal of the filing of the suit which is the physical aspect of the suit. For this purpose therefore, filing of the suit against a dead person must be treated to be a formal defect within the meaning of Order 23, Rule 1(3) since the defect is in the nature of mis-joinder and non-joinder.”

The aforesaid decision was relied upon in the case of Naseem Hushain and Another vs Smt. Mahender Kaur and Another^{^[19]} in which it was held as under:

“In the present case, petitioners while filing the suit had impleaded Virsa Singh as defendant No. 1. However, defendant No. 1 had already died on 22.12.1999, whereas, the suit was filed in the year 2008. The said fact was highlighted by defendant No. 1 at the time of filing of the written statement. Thereafter, petitioner No. 1 moved an application for bringing on record the legal representatives of deceased-Virsa Singh. However, the said application was dismissed. Since the defendant No. 1 was already dead at the time of filing of the suit, the trial Court should have permitted the petitioners to withdraw the suit with permission to file a fresh one on the same cause of action as per law.”

Remedy for the plaintiff in case of suit against a single defendant who was dead before the institution of the suit

In Laxminarayan S/o Late Shri Bheraji & Ors V. Jankibai W/o Late Shri Raghunath Died Through Lrs Smt. Suman @ Shakuntala & Ors.^{^[20]}, the Madhya Pradesh High Court has reiterated that when a suit is instituted against a dead person, it falls within the category of a ‘formal defect’ and the plaintiffs can be allowed to withdraw the suit with liberty to file a fresh suit.

When the suit itself is a nullity owing to the fact that it has been instituted against dead persons, further substitution of them by legal representatives won’t be permissible, thus, the principle which emerges is that a suit instituted against a dead person believing him to be alive on the date of filing of the suit but later on being discovered that he has already expired, is a nullity since the very inception. The same shall be deemed not to have been instituted at all. Since the suit is against a dead person, substitution of legal representatives would also not be permissible under the provisions of Order 22 Rule 4 of the CPC. However, since the suit has already been filed, which is its physical aspect, a prayer for its withdrawal ought to be permitted with liberty to file a fresh suit on the same cause of action”, the court laid down in unequivocal terms.

Thus, the principle which emerges is that a suit instituted against a dead person believing him to be alive on the date of filing of the suit but later on being discovered that he has already expired, is a nullity since the very inception. The same shall be deemed not to have been instituted at all. Since the suit is against a dead person, substitution of legal representatives would also not be permissible under the provisions of Order 22 Rule 4 of the CPC. However, since the suit has already been filed, which is its physical aspect, a prayer for its withdrawal ought to be permitted with liberty to file a fresh suit on the same cause of action.^[21]

In such circumstances the court, can allow the application filed by the plaintiff under Order 23 Rule 1(3) of CPC to withdraw the suit with a liberty to file fresh suit.

Conclusion

A careful review of the decisions of the Hon’ble Superior Courts leads to the below mentioned conclusion:

That no such substitution can be permitted under O I R. 10 and O.22 R.4 CPC in a case where there was a sole defendant, the reason being where there was a sole defendant and he was dead before the suit was instituted, that such a suit is a nullity and no application for amendment of the plaint by deleting the name of the original defendant and substituting another person in his place, can be permitted. In such a scenario plaintiff can pray to the court to allow his suit to be withdrawn under 23 Rule 1(3) of CPC with a liberty to file fresh suit.
Where there are more defendants than one and one of them was dead when the suit was filed, the Courts have held that the legal representatives of the deceased defendant can be brought on record or substituted under O.I R.10 CPC subject to any question of limitation that may be raised by the legal representatives of the deceased person who were brought on record as the suit had been validly presented in so far as the living defendants are concerned, and
Where an appeal is filed, against a person who was dead on the date of the presentation of the memorandum of appeal, the Courts have held that the appellant can be permitted to bring the legal representatives of the dead, person on record. In other words, the Courts have held that substitution is permissible. The principle on the basis of which the Courts have taken this view is that an appeal is a continuation of the original proceedings and as the suit had been validly instituted and the defendant died subsequently, an application to bring his legal representatives under Order XXII, Rule 4 is maintainable and the legal representatives can be brought on record.

^[1] https://lawrato.com/indian-kanoon/cpc/order-22

^[2] https://lawrato.com/indian-kanoon/cpc/order-1

^[3] https://www.latestlaws.com/bare-acts/central-acts-rules/cpc-section-26-institution-of-suits-

^[4] 12 Suth W. R. 45 : 3 Beng LR AC 233

^[5] 1977 AIR (Orissa) 137

^[6] 85 Ind Cas 464: (AIR 1924 Bom 109)

^[7] 2017 (9) SCC 700

^[8] 24 Ind Cas 112: (AIR 1914 Cal 895)

^[9] AIR 1958 CALCUTTA 681

^[10] 25 Mys. LJ 113

^[11] 30 Ind Cas 679 : (AIR 1916 Mad 440)

^[12] 42 Ind Cas 539 : (AIR 1918 Mad 794 (i))