Amendment of plaint for substituting L.Rs. of deceased.

This revision is directed against an order passed in I.A.No.534 of 1982 in O.S.No.79 of 1982. The plaintiff is the petitioner herein. The plaintiff filed a suit in O.S.No.79 of 1982 to recover the amount of Rs.2,100 due under a promissory note dated 11. 1979. The suit was filed on 11. 1982. According to the plaintiff, the defendant died on 30.1.1982. Therefore, he filed I.ANo.534 of 1982 under O.22, Rule 4 of the Civil Procedure Code to substitute the proposed parties 1 to 3 as legal representatives of the deceased first defendant and rank them as defendants 2 to 4. Chittoor Municipality issued a death certificate stating that the defendant died on 20.9.1981. The trial court pointed out that on the date of filing of the suit Seshachala Naidu was no more. Therefore, no suit can be filed against a dead person. The trial court pointed out that a suit filed against a dead person is a nullity. Reliance was placed upon a decision reported in C.Muttu v. Bharath Match Works, A.I.R 1964 Mysore 293, wherein the decision of the Supreme Court in Hiralal v. Kalinath, AIR 1962 S.C. 199: (1961)2S.C.J. 592: (1961)2M.L.J. (S.C.) 157: (1961)2 An. W.R (S.C.). 157: (1962)2 S.C.R 747 was reiterated. Relying upon these decisions the trial court held that no amendment can be allowed for substitution of another person. In Order to come to this conclusion the trial court also relied on the decision of the Orissa High Court in Cuttack Municipality v. Shyamsundar Behra, A.I.R 1977 On. 137: 42 Cut. L.T. 1283. Accordingly, the application filed to bring the legal representatives on record was dismissed by the trial court. It is against this order this revision is filed.

2. Learned counsel for the petitioner submitted that the trial court failed to note that the application was filed to amend the cause title by adding the parties and the application was not filed to bring the legal representatives on record. The petitioner was under the bona fide impression that the defendant died on 30.1.1982 and therefore, the petitioner filed the petition to amend the cause title after his knowledge of the death of the sole defendant. The decisions relied on by the court below have no relevance to the facts of the present case. The court below has not properly understood the scope of the petition and erred in dismissing the petition on the ground that it is not maintainable. Learned counsel for the petitioner further submitted that inasmuch as the petition was filed to amend the cause title after the death of the sole defendant, the application cannot be thrown out on the ground that the suit filed against a dead person is a nullity.

3. In order to support this contention, reliance was placed upon several decisions. On the other hand, nobody was present on behalf of the respondents.

4. I have heard the learned counsel appearing for the petitioner and. perused the records carefully. The fact remains that the suit was filed by the plaintiff on a promissory note executed by the defendant on 11. 1979. The suit was filed on 11. 1982. The plaintiff came to know that the defendant died on 30.1.1982. Hence, he filed a petition under O.22, Rule 4 of the Civil Procedure Code to substitute the legal representatives of the deceased defendant. In the suit, the death certificate of the defendant was produced and according to it, the date of death is given as 20.9.1981 and according to the plaintiff the parties are residing in a remote village and hence it is not possible for him to know about the death of the defendant immediately after the death has occurred. However, the trial court was of the view that the suit filed against a person who is dead is a nullity. A similar situation came up for consideration before a Division Bench of the Andhra Pradesh High Court in Khaja Begum v. Gulam Mohiddin, A.I.R 1976 A.P. 65. I.L.R 1976 A.P. 705, wherein while considering the provisions of O.22, Rule 4 of the Civil Procedure Code the Andhra Pradesh High Court held as follows:

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