AI Structured Summary
Not yet generated for this judgment
Judgment
Govinda Pillai, J.—The Plaintiff is the Appellant. The suit was for the amount due Under two hypothecation bonds executed by one Chacko and his wife Mariamma, who are Defendants 1 and 2 in the plaint filed in the case. The bond was in favour of the 3rd Defendant who was the manager of the Plaintiff''s family. On the allegation that the 3rd Defendant had authorised the Plaintiff to file the suit and realise the amount and also to manage the affairs of the family as he was away, the suit was filed on 2-11-1118 with the Defendants on the party array. Of these the 3rd Defendant was a member of the Plaintiff''s family, and Defendants 4 to 13 were imp leaded as subsequent charge-holders. No relief''s had been asked against them. When summonses were issued from the court below to the Defendants, the summonses to Defendants 1 and. 2 - the executants of the hypothecation bond - were returned with the endorsement that they were dead.
On 12-3-1119, the Plaintiff''s Advocate applied to imp lead Defendants 14 to 17 as the legal representatives of Defendants 1 and 2. On the same date, the court called for the information as to the date of the death of Defendants-1 and 2. The Plaintiff, on 22-3-1119, filed a statement that the 1st Defendant died on 15-12-1118, ay that the 2nd Defendant died on 28-1-1118; On the strength of these statements, the court below passed an ex-parte order imp leading Defendants 14 to 17 as the legal representative of the 1st Defendant. It was ordered that the suit had abated as regards the 2nd Defendant. The Plaintiff''s Advocate filed Anr. petition praying that Defendants 14 to17 being the heirs of the 2nd Defendant as well the abatement might be set aside. While this petition was pending, Defendants 14 to 17 put in a petition on 16-3-1120, to remove them from the party array as the 1st Defendant had died on 10-5-1108 and the 2nd Defendant on. 27-9-1118, that is, long before the suit. They stated that the suit against the dead persons was not maintainable. The dates of the death, of Defendants 1 and 2, as mentioned by Defendants 14 to 17, were proved in the case and there was no dispute regarding the same.
Confronted with this difficulty, the Plaintiff tiled Anr. petition stating that he was unaware of the death of Defendants 1 and 2: before the date of the suit, that Defendants 14 to 17 should be retained on record, and. that the Plaintiff should be allowed to amend, the plaint with them on record. Defendants 14 to 17 objected to this, and after hearing both sides, the learned Judge dismissed the Plaintiff''s petition. The suit also was dismissed as one not properly presented. The appeal is against this decree.
It was admitted by the Appellant''s learned Advocate, that if the suit had been filed against a dead person, the proceedings would be null and void. The rulings in - ''Veeraprm Cheity v. Ponnan'' 31 Mad 86 (A); - Municipal Council Vs. Thazhel Puthan Purayil Kunhipathumma and Another, ; - Rampratab v. Gavri-shankar'' AIR 1924 Bom 109 (C) have also laid down the same principle. So, if the sole Defendant or all the Defendants are dead at the time of the presentation of the plaint, them the court would treat it as null and void, and it will have no jurisdiction to proceed a step further. This would show that the provision under Order 22, CPC could not be applied in such cases; for, in that order, the existence, of a valid proceeding, and presence of a party for or against whom the valid proceedings had been started, were contemplated. The Appellant had no dispute about this position-also. What he contended before us was that when the suit was filed, there were thirteen-Defendants on the party array, and since two alone had been dead, the suit should have been allowed to be proceeded against remaining Defendants who were alive, leaving the discretion to the Court to bring op record the parties necessary for an effective adjudication of the matter before it.
Rule 3 of Order I of the CPC dealing with the joinder of Defendants, reads thus:
All persons may be joined as Defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist whether jointly, severally or in the alternative where, if separate suits were brought against such persons, any common question of law or fact would arise.
This provision implied that if a suit would foe maintainable against one Defendant, then that Defendant could also be added in Anr. suit against Anr. Defendant, if any common question of law or fact arose so far as the Plaintiff and the two different Defendants were concerned. The presence and existence of a Defendant in the party array against whom alone the Plaintiff could ask for relief was therefore'' essential for the valid institution of a suit.
In the present case, the principal debtors were Chacko and his wife Mariamma. The 3rd Defendant was a pro forma party against whom the Plaintiff did not seek any relief. Defendants 4 to 13 were impleaded as subsequent charge-holders. If it was possible for the Plaintiff to get an effective decree with Defendants 4 to 13 alone on the party array, then the court would not be justified in dismissing the, suit, even though Defendants 1 and 2 were dead before the filing of the plaint. The Appellant''s learned Advocate referred us to some rulings which held that when a suit was filed against several Defendants one of whom was dead at the time of the suit, the court would not be justified in dismissing the entire, suit. It was therefore contended that since Defendants 3 to 13 are alive the suit could not have been dismissed. But the rulings relied on by him, and which will be referred to presently, are clearly distinguishable.
The First case is - Makram Ali Molla and Others Vs. Abdul Hamid Molla and Others, . In that case, two persons were the mortgagees. Before the filing of the suit to enforce the mortgage, one of them was dead and the other mortgagee brought the suit in the name of both the mortgagees, and the deceased mortgagee''s father had subscribed to the plaint. Subsequently on objection being raised by the Defendant''s father who was the legal representative, he was added as a Plaintiff. That was allowed because the suit could be brought by either of the co-mortgagees making the other mortgagee a pro forma Plaintiff or Defendant. Even if the suit was brought without the other co-mortgagee on records, the court could, at a -subsequent stage, allow him to be added as a party under Order 1, Rule 10 CPC In this case, it was possible for the Plaintiff who was alive to present a valid plaint. Evidently, ''this case will have no application to the facts of the suit before.
The decision in - Bala Prasad Vs. Radhey Shiam, , is Anr. case where the suit was filed against several Defendants, one of whom was dead at the time. The suit itself was based on a mortgage. The mortgagee was alive and he had been imp leaded in the case. Subsequent to the date of the mortgage, a portion of the. holding had been assigned by the mortgagor to one Rani. She had also been imp leaded as a Defendant in the case; but she was dead before the suit was instituted. It was held that the court could remove the dead person''s name from the party array and add the names of the heirs in the suit. Here also the principal debtor was alive and he was on the party array. It is only to get an effective decree so as not to avoid transactions subsequent to the mortgage that subsequent charge-holders are required to be impleaded in the case. Their impleadment may be unnecessary for the purpose of giving the Plaintiff a decree on the mortgage. The difficulty would present itself at the time of executing the decree, for he would not be able to enforce it as effectively or with as much advantage as would have been the case if subsequent charge-holders also had been put on the party array. There was therefore no substantial difficulty in the presentation of the plaint.
In - ''Pala Mai Narain Mal v. Pauja Singh'' AIR 1926 Lah 153 (F), the suit was on a bond taken by the Plaintiff from two brOrs. . The Plaintiff impleaded both the brOrs. as Defendants. But one of them was dead before the institution of the suit. It was held that the proper procedure was for the court to strike out the name of the deceased Defendant and to allow the suit to proceed against the other Defendant alone. That decision has nothing to do with the facts of the case before us. If the names of the dead Defendants are removed from the party array in this case, the Plaintiff will have no action to continue, for Chacko and his wife are the principal debtors. - ''AIR 1926 Lah 153 (F), had been followed in - a later ruling of the same court in - ''Roop Chand v. Sardar Khan'' AIR 1928 Lah 359 (G). In - AIR 1947 73 (Nagpur) , also, this principle had been accepted.
In that case, the suit was instituted in the name of two Plaintiffs, one of whom was dead before the suit. It was stated that the suit was void as regards the deceased Plaintiff, but it could proceed with the remaining Plaintiff. The learned Judge in paragraph 4 of the judgment stated that since the suit was properly presented so far as the Plaintiff Kashinath was concerned, he could prosecute the'' same on his account as if he was the sole Plaintiff in the case. The suit vis-a-vis Sadashiv who was dead will certainly be void and his legal representatives cannot be brought on record under Order 22, Rule 3. But if Kashinath thought1 that his suit was likely to fail in the absence of the representatives of the deceased Sadashiv, it was open to him to apply to the court for his legal representatives being impleaded in the suit as co-Plaintiffs, provided the cause of action in their favour was not extinguished by efflux of time. The court had power under Sub-rule (2) of Rule 10 of Order 1 to add the name of any person who ought to have been joined whether as Plaintiff or Defendant, or whose presence before the court might be necessary in order to enable the court ''effectively and completely to adjudicate upon and'' settle all the questions involved in the suit.
In this case the living Plaintiff was by himself competent to institute the suit and to continue the same. So the other persons would be allowed to be imp leaded by the court only if it was of opinion that it was necessary for the purpose of an effectual and complete adjudication.
But the above ruling does not advance our present case any further, for, there cannot be any adjudication without the principal debtors on the party array. Nor will the presence of Defendants 3 to 13 in the party any help the Plaintiff in any way to prosecute the suit; because, the principal debtors against whom and with whom alone on the party array the plaint-ill could get a decree were dead, long before the institution of the suit. So the view of the court below that the suit was not properly instituted and that it had no jurisdiction to proceed further with the suit was correct.
It was argued that on the date on which Defendants 14 to 17 were added in the case, the cause of action relating to one of the transactions had not become barred, so that the court should retain the suit on the tile to try that cause of action. When the plaint is not properly presented, the question of adding any other party in the place of deceased Persons does not exist, and so this question does not arise for consideration. We confirm the decree of the lower court and dismiss the appeal with costs.