1. Suit captioned M/S M & Company Engineers & Contractors Pvt. Ltd v. Ghulam Qadir Baba has been instituted on 09.12.2009 seeking following relief:-

a) A decree of Mandatory Injunction directing the defendant and any person claiming through or under him to effect necessary renovation/repairs in the demised suit premises enabling the plaintiff to continue with the business without facing further hardships and inconvenience as well as be directed to allow the plaintiff to hold and possess physically the suit premises which the plaintiff is otherwise entitled to hold.

b) A decree of Permanent Injunction restraining the defendant and any one claiming through or under him from creating third party interest in any manner whatsoever of the suit premises.

c) Any other decree or order which this Hon'ble Court deems just and proper may be passed in favour of the plaintiff and against the defendant to meet the ends of justice."

2. Summons were issued from time to time. On 9.3.2010, trial court proceeded in ex-parte against the defendant. On 19.04.2011, an application came to be filed on behalf of petitioner Abdul Majeed Baba S/O Ghulam Qadir Baba seeking leave-to intervene. In the said application it has been projected that the plaintiff has filed the suit fraudulently against Ghulam Qadir Baba who has expired much before the institution of the suit, the property of Late Ghulam Qadir Baba has devolved upon the applicant (petitioner herein), then it is projected that the suit being against a dead person is a nullity, therefore, be dismissed.

3. Trial court has rejected the application vide detailed order dated 19.4.2011 opining therein that in ex-parte evidence was led and the case was fixed for arguments/decision on 01.05.2010 but in the meantime application came to be filed. It is also noticed in the order that the process server had gone for effecting service on the defendant, the report on summons as recorded would indicate that it was never divulged that Ghulam Qadir Baba is dead. Trial court while referring to Order 22 Rule 1 and Rule 4 and then to Rule 10 has opined that no negligence can be attributed to the plaintiff in filing suit against the dead defendant, nothing has been brought on record to show that the plaintiff was aware about the death of the defendant, therefore, suit cannot be treated as nullity. Right to sue survives against LRs of the deceased defendant. Application of Abdul Majeed Baba has been accepted to the extent of arraying him as party/defendant and the time has been given to the counsel for the plaintiff for bringing on record the other LRs of the deceased defendant.

4. Dissatisfied with the said order reivisional power under Section 115 of CPC has been invoked.

5. Learned counsel for the petitioner (son of the deceased defendant) would contend that the suit has been filed against a dead person, therefore, is nullity. Trial court has not appreciated the position of law, the order impugned runs contrary to the law as has been laid down by the Division Bench of this Court in the judgment captioned All Mohammad Khan v. Vijay Tulsi (AIR 1986 J&K 26).

6. In the reported judgment it has been noticed that the suit was filed against the defendant who was dead five years before the institution of the suit, an application was filed for substitution, same was permitted and the plaintiff was to amend the plaint and to bring on record legal representatives of the deceased defendant. The said order was challenged by medium of revision petition. Learned Single Judge formulated the following question for adjudication:

"Where a suit is filed against a dead person, can the plaintiff be allowed subsequently to amend the plaint and substitute the legal representatives in place of the deceased defendant"

The Division Bench of this Court while noticing the position of law laid down by the Division Bench of Mysore High Court in case C. Muttu v. Bharat Match Works Sivakasi (AIR 1964 Mys. 293) and then while relying on the judgment rendered b

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