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IN THE HIGH COURT OF MADHYA PRADESH
Pranay Verma, J.
Laxminarayan and others v. Janki Bai Through LRs. Smt. Suman and others
Civil Revision No. 591of 2023 (Indore): against the order dated 6.7.2023 passed by the Civil Judge, Junior Division, Dewas in RCS No. 49-A/2019; Decided on 9.10.2023.
flfoy çfØ;k lafgrk] 1908 && vk- 23 fu- 1¼3½ && e`rd O;fä;¨a d¢ fo#) okn && vkifÙk fd e`r O;fä;¨a d¢ fo#) okn pyus ;¨X; ugÈ && oknh d¨ çfroknhx.k dh e`R;q d¢ fo"k; esa tkudkjh ugÈ Fkh && mlh okn gsrqd ij u;k okn çLrqr djus dh Lora=rk d¢ lkFk okn okil ysus d¢ fy, oknh }kjk vkosnu çLrqr && [kkfjt && e`r O;fä d¢ fo#) okn vÑrrk gS && fofèkd çfrfufèk;¨a dk çfrLFkkiu vuuqKs; && ijarq =qfV v©ipkfjd gS && fopkj.k U;k;ky; dk vkns'k vikLr && u;k okn çLrqr djus dh Lora=rk d¢ lkFk okn okil ysus dh vuqKk çnku dh xÃA
fopkj.kh; ç'u ;g gS fd D;k oknh }kjk çfroknh Øekad 1 ls 3 d¢ fo#) okn lafLFkr djuk] ftudh e`R;q ,sls laLFkkiu ls igys gh g¨ pqdh Fkh] v©ipkfjd =qfV g¨xh v©j ekeys dh tM+ rd ugÈ tk,xh] ftl fLFkfr esa flfoy çfØ;k lafgrk d¢ vkns'k 23 fu;e 1¼3½ dk micaèk ykxw g¨xk\ ¼iSjk 7
vfHkfu/kkZfjr% bl U;k;ky; }kjk Bkdqj nhu flag ¼mi;Zqä½ d¢ ekeys esa iwoksZä fu.kZ;¨a dk voyac fy;k x;k Fkk] ftlesa ;g vfÒfuèkkZfjr djus ds fy, fofÒUu vU; mPp U;k;ky;¨a d¢ fu.kZ;¨a dk Òh voyac fy;k x;k Fkk fd e`r O;fä d¢ fo#) lafLFkr okn vÑrrk gS v©j fofèkd çfrfufèk;¨a dk çfrLFkkiu vuuqKs; gS blfy, ;g v©ipkfjd =qfV gS ftld¢ n`f"Vd¨.k ls oknh d¨ okn okil ysus dh vuqefr nh tk ldrh gSA ¼iSjk 10
bl çdkj] t¨ fl)kar lkeus vkrk gS og ;g gS fd fdlh e`r O;fä d¢ fo#) ;g fo'okl djrs gq, lafLFkr okn fd okn çLrqr djus ds fnukad dks og thfor Fkk ijarq ckn esa irk pyk fd mldh e`R;q igys gh g¨ xbZ Fkh] çkjaÒ ls gh vÑrrk gSA ekuk tk,xk fd og lafLFkr gh ugÈ fd;k x;kA D;ksafd okn e`r O;fä d¢ fo#) gS] flfoy çfØ;k lafgrk d¢ vkns'k 22 fu;e 4 d¢ micaèkksa d¢ vèkhu fofèkd çfrfufèk;¨a dk çfrLFkkiu Òh vuqKs; ugÈ g¨xkA rFkkfi] D;ksafd okn çLrqr fd;k gh tk pqdk gS] t¨ bldk Ò©frd igyw gS] mlh okn gsrqd ij u;k okn çLrqr djus dh Lora=rk d¢ lkFk bls okil ysus dh çkFkZuk eatwj dh tkuk pkfg,A ¼2007½ ,llhlh vkWuykbu cacbZ 381] ¼2015½ ,llhlh vkWuykbu iatkc ,oa gfj- 8414 rFkk 2017 ¼2½ ,eih,yts 850 voyafcrA ¼2017½ 5 ,llhlh 63] 2017 ¼2½ ,eih,yts 158] 2008 ¼2½ ,eih,yts 151 rFkk ,vkbvkj 2007 ,pih 14 fufnZ"VA ¼iSjk 11
iwoksZDr foospuk d¢ ifj.kkeLo:i] fopkj.k U;k;ky; }kjk ikfjr vk{ksfir vkns'k fLFkj ugÈ j[kk tk ldrk v©j bls vikLr fd;k tkrk gSA oknhx.k }kjk flfoy çfØ;k lafgrk d¢ vkns'k 23 fu;e 1¼3½ d¢ çLrqr vkosnu eatwj fd;k tkrk gS v©j mUgsa u;k okn çLrqr djus dh Lora=rk d¢ lkFk okn okil ysus dh vuqefr çnku dh tkrh gSA ¼iSjk 13
Civil P. C., 1908 -- O. 23 R. 1(3) -- suit against dead persons -- objection that suit is not maintainable against dead persons -- plaintiff had no knowledge about death of defendants -- application filed by plaintiff for withdrawal of suit with liberty for filing fresh suit on same cause of action -- rejected -- suit against dead person is nullity -- substitution of legal representatives is impermissible -- but defect is formal -- order of trial Court set aside -- permission of withdrawal of suit with liberty of filing fresh suit granted.
The question of consideration is as to whether institution of the suit by plaintiffs against defendants 1 to 3 who had already expired prior to such institution would be a formal defect and would not go to the root of the matter in which case the provisions of Order 23 Rule 1(3) of the CPC would be applicable. [Para 7
Held : The aforesaid judgments were relied upon by this Court in the case of Thakur Deen Singh (supra) in which judgments of various other High Courts were also relied upon to hold that a suit instituted against a dead person was a nullity and since substitution of legal representatives was impermissible, the same was a formal defect in view of which the plaintiffs could be permitted to withdraw the suit.
Thus, the principle which emerges is that a suit instituted against a dead person believing him to be alive on the date of filing of the suit but later on being discovered that he has already expired, is a nullity since the very inception. The same shall be deemed not to have been instituted at all. Since the suit is against a dead person, substitution of legal representatives would also not be permissible under the provisions of Order 22 Rule 4 of the CPC. However, since the suit has already been filed, which is its physical aspect, a prayer for its withdrawal ought to be permitted with liberty to file a fresh suit on the same cause of action. (2007) SCC Online Bom. 381, (2015) SCC Online P&H 8414 and 2017 (2) MPLJ 850 relied on. (2017) 5 SCC 63, 2017 (2) MPLJ 158, 2008 (2) MPLJ 151 and AIR 2007 HP 14 referred to. [Para 11
As a result of the aforesaid discussion, the impugned order passed by the trial Court cannot be sustained and is hereby set aside. The application under Order 23 Rule 1(3) of the CPC filed by the plaintiffs stands allowed and they are permitted to withdraw the suit with liberty to file a fresh suit. [Para 13
ORDER
1. This Revision under section 115 of the CPC has been preferred by the plaintiffs being aggrieved by the order dated 6.7.2023 passed in RCS No.49-A/2019 by the Civil Judge, Junior Division, Dewas whereby their application under Order 23 rule 1 of the CPC for withdrawal of the suit with liberty to institute a fresh suit has been rejected.
2. The facts in brief are that on 20.3.2019 the plaintiffs instituted an action for declaration of their title to the suit land and for permanent injunction. Summons of the suit were issued to the defendants and defendants 1 to 3 were purportedly served by way of publication in a daily newspaper. On 19.9.2022, at the time of recording of plaintiff’s ex parte evidence, Smt. Abhaya Bai @ Kalka, legal representative of deceased defendant No.2 Krishnarao, filed an application for dismissal of the suit on the ground that the same has been instituted against dead persons. By order dated 15.12.2022 the application was rejected by the trial Court holding that Smt. Abhaya Bai is not a party to the suit hence has no right to file the application.
3. On 8.5.2023, the plaintiffs filed an application under Order 23 rule 1(3) of the CPC for withdrawal of the suit with liberty to institute a fresh suit in respect of the subject matter of the suit submitting that since the same has been instituted against dead persons, it is a nullity and the defect goes to the root of the matter hence they deserve permission to withdraw the same. By the impugned order the application has been rejected by the trial Court observing that defendants 1 to 3 had expired prior to filing of the suit itself hence their legal representatives cannot be brought on record. Since the suit was filed against dead persons, the same does not fall within the category of a formal defect. In consequence the application filed by the plaintiffs has been rejected.
4. Learned counsel for the plaintiffs has submitted that the suit was instituted by plaintiffs against dead persons. They had no knowledge at the time of institution of the suit that they have already expired. The said fact became known to them only upon an application having been filed by one of the legal heirs of defendant No.2 for dismissal of the suit. Since the suit was filed against dead persons, their legal representatives also cannot be brought on record. The same is a formal defect and does not strike at the root of the suit hence provisions of Order 23 rule 1(3) of the CPC were very much applicable. In fact, the suit was itself a nullity. Reliance was placed by him on the decision of the Supreme Court in V. Rajendran and Another v. Annasamy Pandian (dead) through Legal Representatives Karthyayani Natchiar (2017) 5 SCC 63, of the Punjab and Haryana High Court in Naseem Hushain and Another v. Smt. Mahender Kaur and Another 2015 SCC OnLine P&H 8414, of the Bombay High Court in Indana International Limited v. Santana Miguel Fernandis and Another 2007 SCC OnLine Bom. 381 and of this Court in Thakur Deen Singh (dead) through Legal Representatives Rampratap Singh and Others v. Surendra Singh @ Radhika Singh 2017 (2) MPLJ 580.
5. Per contra, learned counsel for the caveator/respondent No.8 has submitted that institution of the suit against dead persons is not a formal defect and goes to the very root of the matter. It cannot be said that the suit was a nullity. The trial Court has hence not committed any error in rejecting the application filed by the plaintiffs. Reliance was placed by him on the decisions of this Court in Raghuraj and Others v. Ramprakash and Others 2017 (2) MPLJ 158 and Vinod Kumar Gupta v. Ramadevi Shivhare and Another 2008 (2) of MPLJ 151 and of the Himachal Pradesh High Court in Promila Bakshi and Others v. Ashok Bhatia and Others AIR 2007 HP 14.
6. I have considered the submissions of the learned counsel for the parties and have perused the record.
7. The question of consideration is as to whether institution of the suit by plaintiffs against defendants 1 to 3 w
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