Ramesh Kumar vs Matha Anand Vara Prasad
2022 Latest Caselaw 7407 AP

        THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

  CIVIL REVISION PETITION Nos.2613, 2624 and 2625 of 2019

COMMON ORDER:

        These three revision petitions are filed under Article 227

of the Constitution of India. C.R.P.No.2613 of 2019 questions

the correctness of order dated 07.05.2019 of learned Principal

Junior Civil Judge, Ramachandrapuram in I.A.No.128 of 2019

in O.S.No.15 of 2018. C.R.P.No.2624 of 2019 questions the

correctness of order dated 07.05.2019 of learned Principal

Junior Civil Judge, Ramachandrapuram in I.A.No.126 of 2019

in O.S.No.15 of 2018.      C.R.P.No.2625 of 2019 questions the

correctness of order dated 07.05.2019 of learned Principal

Junior Civil Judge, Ramachandrapuram in I.A.No.178 of 2019

in O.S.No.15 of 2018.      In these three revision petitions, the

revision petitioner is plaintiff.   Respondent Nos.1 and 2 are

defendants before the trial Court. Respondent Nos.3 to 6 were

stated to be the legal representatives of deceased respondent

No.1. O.S.No.15 of 2018 is a suit filed by one plaintiff as

against two defendants showing them as defendant Nos.1 and

2. The suit is on a mortgage consisting of item Nos.1 and 2 of

the plaint schedule. The allegations are that defendant Nos.1

and 2 are brothers to each other and they together jointly

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borrowed Rs.15,000/- from the plaintiff on 17.01.2006 by

executing the mortgage deed dated 17.01.2006 showing the

plaint schedule property as security. The promise of the

debtors was to repay the whole debt within one year but they

failed to pay it. Therefore, the suit is filed with the following

prayers:

"a) To pass a preliminary mortgage decree for the suit amount of Rs.1,97,251/- (Rupees one lakh ninety seven thousand two hundred fifty one only) giving time for redemption on the suit mortgage deed to the defendants and if the defendants failed to redeem the same by that date pass a final decree entitling the plaintiff to realize the decretal amount covered by the preliminary decree by sale of hypotheca and also enforcing personal liability against the other properties of the defendants, if the decretal debt remains undercharged after the sale of hypotheca.

b) Grant interest of 24% p.m. on the above said amount from the date of the suit till the date of realization of the amount outstanding;

c) Award costs of the suit;

d) To grant such other and further reliefs as the Hon'ble Court may deem fit and proper under the circumstances of the case."

2. Defendant No.2 filed a written statement wherein

borrowal of debt and mortgage of property and execution of deed

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of mortgage are all admitted. However, it is contended at para

No.4 of the written statement that defendant No.1 made various

payments at various points of time and a total of Rs.25,920/-

was paid towards the jointly borrowal debt and these payments

were acknowledged by the plaintiff in a small note book, which

contains the hand writing, initials and phone numbers of the

plaintiff himself. The interest claimed is more than the

principal. With those allegations, defendant N.2 sought for

dismissal of the suit.

3. After instituting the suit when the summons were taken

out to defendant No.1, they came returned unserved showing

that defendant No.1 died on 10.05.2015. Be it noted that the

suit was instituted on 09.01.2018. Thus, by the time of

instituting the suit itself, defendant No.1 died. It was in those

circumstances, on 14.03.2018 learned Principal Junior Civil

Judge, Ramachandrapuram before whom the suit was pending

recorded that the suit against defendant No.1 was abated. It is

thereafter the plaintiff had filed I.A.No.128 of 2019 under

Section 5 of the Limitation Act to condone the delay of 241 days

in presenting the application under Order XXII Rule 9 C.P.C.

Plaintiff filed I.A.No.126 of 2019 under Order XXII Rule 9 C.P.C.

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to set aside the order of abatement. Plaintiff also filed

I.A.No.178 of 2019 under Order XXII Rule 4 read with Order VI

Rule 17 C.P.C. to bring on record the legal representatives of

deceased defendant No.1. As could be seen from the record, two

sons and two daughters of the deceased defendant No.1 are

sought to be brought on record as respondent Nos.3 to 6 as

legal representatives of deceased defendant No.1/respondent

No.1. For the respondents, counters were filed. The learned

trial Court took up all the three applications, enquired into all

the three of them and passed a common order dated

07.05.2019. It recorded the facts that emanated from the

record and then stated that death of defendant No.1 was earlier

to the filing of the suit and the suit against a dead person is a

nullity. That the order of abatement was passed on 14.03.2018

but the petitions were filed on 15.02.2019. The reasons

assigned are not supported by any sufficient cause and there

was unnecessary delay of 11 months and there was no diligence

on part of the plaintiff. For these reasons, it dismissed all the

three applications. Aggrieved by those orders, the plaintiff/

petitioner has come up with these revisions stating that learned

trial Court committed error and the reasons averred by the

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petitioner were not properly considered and the sickness of

petitioner was also not considered and one opportunity could

have been given at least on terms and in failing to do so learned

trial Court committed injustice to suffer. With these reasons,

revision petitioner seeks to upset the impugned orders.

4. Learned counsel for respondents supported the impugned

orders and stated that the suit against a dead person is nullity

and to bring on record legal representatives in such a suit a

petition under Order XXII Rule 4 C.P.C. is inappropriate since

that petition is applicable only for bringing legal representatives

when the death occurs during pendency of the suit and not

otherwise. For these reasons, learned counsel for respondents

submit that there is no need to interfere with the orders of the

trial Court.

5. Learned counsel on both sides submitted arguments and

both sides cited legal authorities.

6. Now the point that falls for consideration is:

"Whether a suit against a dead person is nullity in all

facts and circumstances and whether incorrect mention of

provision of law disentitles a party from availing a relief which is

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otherwise available and whether the impugned orders failed to

notice the cause offered as sufficient and thereby there was

jurisdictional error?

7. Point:

As is noticed earlier, between the creditor and debtors the

suit is on record and the debt and the mortgage are undisputed

by pleadings. The defence was one of discharge and

incorrectness in making a claim for interest which stands

higher than the principal. That defendant Nos.1 and 2 are

brothers to each other is not in dispute. That the suit was filed

within the period of limitation is also not in dispute. The fact is

that the plaintiff had come to know about death of defendant

No.1 only after filing of the suit and only when the process was

returned unserved. It is not the case that defendant No.2

informed the Court or the plaintiff about death of defendant

No.1. Respondent Nos.3 to 6 herein are the legal representatives

of the deceased respondent No.1/defendant No.1 is also not in

dispute. It is in the backdrop of these admitted facts, now the

present revisions require consideration. Since all the three

revisions are intimately connected and emanate out of a

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common order passed by the trial Court, they could

conveniently be disposed of at once.

8. Learned counsel on both sides placed reliance on a

judgment of the Hon'ble Supreme Court of India in Pankajbhai

Rameshbhai Zalavadia Vs. Jethabhai Kalabhai Zalavadiya

(deceased) through Lrs1. It was also a case where one of the

defendants was found dead much earlier to institution of the

suit. While stating that a suit against a dead person is a nullity,

the Hon'ble Apex Court held that if the mistake was bona fide,

the law contained in Section 21 of the Limitation Act, 1963

requires consideration and the plaintiff can be permitted to

bring on record the legal representatives of the deceased.

However, the Hon'ble Apex Court stated that in such

circumstances, it was Order I Rule 10 C.P.C. that was to be

applied since operation of Order XXII Rule 4 C.P.C. is possible

only when the death of a defendant occurs during pendency of

the suit and not prior to the institution of the suit. In the said

judgment, at para No.16 the Hon'ble Apex Court stated that

even if the application was filed under Order XXII Rule 4 C.P.C.,

(2017) 9 SCC 700

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the trial Court should have considered the same as one filed

under Order I Rule 10 C.P.C. in order to do justice between the

parties. Mere mentioning of incorrect provision should not

cause prejudice to the otherwise eligible plaintiff. Thus, as a

matter of rule, a suit against a dead person though nullity is not

such a flaw leaving no remedy. The plaintiff is always made

entitled to move appropriate application to bring on record the

legal representatives of such a deceased defendant. In fact,

learned counsel for revision petitioner has, for such proposition,

also cited a judgment of this Court in Vemuri Krishna Prasad

Vs. Ghorpade Radha Bai (died ) per L.Rs.2. Now it is in the

context of the above well settled provisions of law, the dispute

has to be resolved.

9. One ground on which petitions were dismissed by the

learned trial Court is that suit against a dead person is a nullity

and therefore, the prayers of the plaintiff were refused. That

view is against law. Since the above referred rulings amply

indicate that corrective measures are made available by law

itself to bring on record legal representatives of the deceased

2010 (4) ALT 305

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defendant, who died earlier to the institution of the suit, the

view held by the trial Court being against law has to be set

aside.

10. Learned trial Court recorded that it did not find

acceptable causes to condone the delay and to set aside the

abatement. The sworn affidavit of the plaintiff/revision

petitioner/petitioner before the trial Court categorically show

that the plaintiff made best efforts to secure the names and

addresses of the legal representatives of the deceased and could

not get them quickly and it consumed so much time and on

securing them, he filed the applications. Now the case on

record indicates that defendant No.2, whose own brother died

prior to the suit, did not choose to disclose to the Court the

names of the legal representatives of defendant No.1. Then the

plaintiff had to put his own efforts and investigate and find who

were left behind by the deceased defendant No.1. As per the

cause title in the plaint, plaintiff belongs to Draksharamam and

the defendants belong to another village called Unduru. The

plaintiff after great exercise was able to secure the names of the

legal representatives. The correctness of the status of those

legal representatives is never in dispute. The suit itself is

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pending. It is in such circumstances, the cause shown by

plaintiff for the delay in bringing on record the legal

representatives is something that is to be categorized as good

and sufficient cause. The approach of the learned trial Court

that the petitioner failed to show any material in proof of his

difficulty in finding legal representatives is something that is

preposterous. What sort of evidence a trial judge could believe

one could possess with reference to ones search for legal

representatives of a deceased. Therefore, the very approach of

the trial Court is against reason and law. Therefore, the

impugned orders cannot be supported.

11. Coming to the fact that the petition to bring the legal

representatives on record is filed under Order XXII Rule 4

C.P.C., which is incorrect in the facts of the case and on

applying the rulings of the Hon'ble Supreme Court of India

referred above, this Court considers the application under Order

XXII Rule 4 C.P.C. as one that is filed under Order I Rule 10

C.P.C. with a view to do complete justice between the parties.

Presence of legal representatives of one of the deceased debtors

is always necessary and the effort to bring necessary parties on

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record should not be easily denied. Point is answered in favour

of the revision petitioner.

12. In the result, the Civil Revision Petitions are allowed

setting aside the orders dated 07.05.2019 in I.A.Nos.128, 126

and 178 of 2019 in O.S.No.15 of 2018 on the file of learned

Principal Junior Civil Judge, Ramachandrapuram. In effect,

I.A.Nos.128, 126 and 178 of 2019 in O.S.No.15 of 2018 stand

allowed. The trial Court shall proceed further with the trial

expeditiously. There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 27.09.2022 Ivd

Dr. VRKS, J C.R.P.No.2613 of 2019 & batch

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CIVIL REVISION PETITION Nos.2613, 2624 and 2625 of 2019

Date: 27.09.2022

Ivd