The suit filed against a dead person is not maintainable if the plaintiff fails to convincingly establish the reason for the delay in filing the suit.

This revision is directed against the order dated 30.1.2002, made in I.A. No.723/1999 in O.S. No.235/1999 by the Principal District Munsif, Salem, dismissing the petition filed under Or.22 R.4 CPC, declining to implead the legal representatives of the deceased Defendant/Abdul Lathif Noori. The Plaintiff is the Revision Petitioner.

2.Plaintiff has filed the suit for Specific Performance. Case of the Plaintiff is that the Defendant entered into an oral agreement of sale of vacant site - suit property in Alagapurampudur within the Salem Corporation Limit in S.No.164/3. Oral Agreement was entered into on 16.01.1993. Sale price was fixed at Rs.13,216/-. Oral Agreement was concluded in the presence of one Balusami Naidu and one Visvanathan. According to the Plaintiff, she has paid an advance of Rs.5000/-, by way of Cheque dated 30.01.1993, drawn on Salem District Cooperative Central Bank, Cherry Road. Plaintiff and the Defendant have further agreed that the Sale Deed should be taken at an early possible date on the payment of balance of sale consideration of Rs.8,216/-. The Plaintiff was always ready and willing to perform her part of the contract. She has been requesting the Defendant to execute the Sale Deed in her favour; but the Defendant was evading to execute the Sale Deed. On 31.01.1997, the Defendant met the Plaintiff and her husband and assured to execute the Sale Deed, after receiving the balance of sale consideration. Since the Defendant failed to keep up his word, the Plaintiff had issued a Legal Notice on 21.02.1998, which was acknowledged by the Defendant. Since the Defendant had not executed the Sale Deed as agreed by him, the Plaintiff has filed the suit for Specific Performance of contract.

3.Court Summons sent to the Defendant was returned with an endorsement "died". The Plaintiff has filed I.A.No.723/ 1999 stating that since she is residing at Salem, she had not known about the death of the Defendant and she came to know about the death of the Defendant only when the summons were returned. The Defendant died in June 1998 at Dindigul leaving behind him his three sons and three daughters. Hence, seeking impleading of the legal representatives of the deceased Defendant, Plaintiff has filed I.A.No.723/1999.

4.Application was resisted by the proposed parties contending that Abdul Latif Noori died even on 4.6.1998. According to the proposed parties, though the Plaintiff knew about the death of their father, the Plaintiff has purposely filed the suit against their father who was already dead. The application has been resisted mainly on the ground that Or.22 R.4 CPC is applicable only when the Defendant dies during the pendency of the suit and is not applicable where the Defendant has died even prior to the institution of the suit. Application is not maintainable since there had been no application to set aside the abatement nor any application to condone the delay.

5.Upon consideration of contentions of both parties, the learned District Munsif found that in all probability the Plaintiff must have known about the death of Defendant/Abdul Latif Noori. It was further held that the Plaintiff has purposely filed the suit without verifying whether the Defendant was alive or dead. In the view of the lower court, the suit filed against the dead person is not maintainable. It was further held that since the Plaintiff has not proved the suit to be within the period of limitation, the learned District Munsif dismissed the petition declining to implead the legal representatives.

6.Aggrieved over the dismissal of the application filed under Or.22 R.4 CPC, read with Sec. 151 CPC, the Revision Petitioner/Plaintiff has preferred this revision petition. Revision Petitioner is represented by counsel Mr.T.Murugamanickam. All the respondents have been served. Substituted service was also effected by publication in vernacular. But Respondents 1, 4 to 6 have not entered appearance. Respondents 2 and 3 are represented by counsel Mr.R.T