JUDGMENT :

R.F. Nariman, J.

1. Leave granted.

2. The present case arises out of a Title Suit filed in January, 2006 by one Samar Kumar Roy against Smt. Jharna Bera. The suit is instituted as a Title Suit under Section 34 of the Specific Relief Act, 1963 for a declaratory decree, and under Section 38 of the Specific Relief Act, 1963 for perpetual injunction. According to the plaintiff, the father of the defendant was a senior employee under the Directorate of Employment Exchange, Government of West Bengal. The plaintiff was a junior employee under the same Directorate. According to the plaintiff, by blackmail and coercion, a show of marriage was arranged by the defendant's father with the plaintiff by registration of the said marriage under the Special Marriage Act, 1954. The averments in the plaint are that no essential ceremonies of a Hindu marriage were performed and that there was no consummation of the said marriage thereafter. After narrating a litany of wrongs by the defendant, the plaintiff asked for the following reliefs:

A. A decree of declaration that the defendant is not legally married wife of the plaintiff and that she has no right to claim the plaintiff as her husband inasmuch as the alleged marriages between the plaintiff and the defendant are not legal, valid and tenable in law;

B. Permanent injunction against the defendant restraining her from claiming the plaintiff as her husband and disturbing the plaintiff at his office, on the way of the plaintiff going to office and coming back home;

C. Temporary injunction;

D. For such other relief or reliefs the plaintiff is entitled to in law and equity.”

3. A written statement was filed by the present respondent in the said suit, denying all the allegations contained therein. While the said suit was pending, the plaintiff died on 10th October, 2012. On 19th December, 2012, the plaintif's mother applied under Order 22 Rule 3 of the Code of Civil Procedure, 1908, to be added as a legal representative of the plaintiff. By an order dated 17th April, 2013, the plaintiff's mother was so substituted. Against the said order, a revision was filed, and by the impugned order dated 15th October, 2015, the order dated 17th April, 2013 was set aside, it being held that after the death of the plaintiff, no right to sue survived in favour of the plaintiff's mother.

4. Mr. Gourab Banerji, learned senior counsel appearing on behalf of the appellant, has submitted that the High Court's judgment is wrong on principle, and has cited extracts from the 59th Law Commission Report of 1974 and various judgments to show that the plaintiff's mother could continue the suit, inasmuch as the said suit was not, in substance, a petition for dissolution of marriages under either the Special Marriage Act, 1954 or the Hindu Marriage Act, 1955. It was a suit filed under the Specific Relief Act for declaration of a legal character which, according to him, was maintainable as such.

5. On the other hand, learned counsel for respondent, has argued before us that the High Court judgment is correct and that, in substance, the suit is really for a decree for annulment of marriage and would, therefore, fall under the Special Marriage Act and/or the Hindu Marriage Act. He has referred to the Family Court's Act, 1984 Sections 7 and 8, in particular, to buttress his submission that, in any event, the Civil Court's jurisdiction would be barred the moment a suit of this nature is filed.

6. Having heard the learned counsel for the parties, the question that needs to be decided is as to whether a suit which is, in substance, a suit filed under Section 34 of the Specific Relief Act is maintainable at the behest of a legal representative of a dead plaintiff.

7. Shri Banerji took us through portions of the 59th Law Commission Report 1974. What exercised the Law Commission was as to whether the expression “on a petition presented by either parties thereto” ought to be omitted, and third parties be allowed to ask for the reliefs that o