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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

I.A.     NOs.     2     TO     6      

IN      

SPECIAL     LEAVE     PETITION     (C)     No.     7735     of     2010      

Gurcharan Singh                      … Petitioner Versus

Surjit Singh & Anr.    … Respondents

O     R     D     E     R   

These interlocutory applications have been filed by the  

petitioner in Special Leave Petition No.7735 of 2010.  I.A.  

No. 2 of 2011 is an application for substitution of legal  

representatives of deceased respondent No.1.  As  

respondent no.1 died on 09.06.2009 and the application for  

substitution has been filed on 05.09.2011, I.A. No.3 of 2011  

has been filed for condonation of delay in filing the  

application for substitution of legal representatives of the  

deceased respondent No.1.  The question which I have to

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decide is whether an application for substitution of a  

respondent who was dead when the Special Leave Petition  

was filed was maintainable, and if not, the remedy of the  

petitioner when he comes to learn that the respondent was  

actually dead when he filed the Special Leave Petition.    

2. Learned counsel for the petitioner relied on the  

provisions of Order XXII of the Code of Civil Procedure, 1908  

(for short “the CPC”) as well as the amendments made  

thereto by the High Court of Punjab and Haryana and  

submitted that even where the respondent was dead when  

the Special Leave Petition was filed, his legal heirs can be  

substituted under these provisions of the C.P.C.  He also  

relied on the decisions in Bank     of     Commerce     Ltd.,     Khulna   v.  

Protab     Chandra     Ghose     and     Others   [AIR (33) 1946 Federal  

Court 13], (Adusumilli)     Gopalakrishnayya     &     Anr  . v. Adivi  

Lakshmana     Rao   [AIR 1925 Madras 1210], H.H.     Darbar    

Alabhai     Vajsurbhai     &     Ors.   v. Bhura     Bhaya     &     Ors.   [AIR 1937  

Bombay 401], Sachindra     Chandra     Chakravarti   v. Jnanendra  

Narayan     Singh     Roy     &     Anr.   [AIR 1963 Calcutta 417], State     of    

West     Bengal   v. Manisha     Maity     and     Others   [AIR 1965  

Calcutta 459], Angadi     Veettil     Sreedharan   vs. Cheruvalli  

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Illath     Sreedharan     Embrandiri     Manoor   [AIR 1968 Kerala 196],  

Vantaku     Appalanaidu     &     Ors.   v. Peddinti     Demudamma     &    

Anr. [AIR 1982 A.P. 281], Karuppaswamy     and     Others   v. C.  

Ramamurthy [AIR 1993 SC 2324] and Ram     Kala   v. Deputy  

Director     (Consolidation)     and     Others   [(1997) 7 SCC 498].

3. I have perused the aforesaid decisions cited by learned  

counsel for the petitioner and I find that in Bank     of    

Commerce     Ltd.,     Khulna   vs. Protab     Chandra     Ghose     and    

Others (supra), the Federal Court took the view that where  

an appeal has to be preferred for the first time against the  

legal heir of a person in whose favour the lower Court had  

passed a decree, the mere fact that an appeal had already  

been preferred as against other persons will not justify the  

application being treated merely as one to add a party  

because it is in substance an appeal preferred against him  

for the first time.  After taking this view, the Federal Court  

held that an application for substitution of legal  

representatives of a respondent, who was dead before the  

filing of the appeal, must be treated as if appeal is filed for  

the first time against legal representatives of the deceased  

respondent and the delay in making the application is only  

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to be excused under Section 5 of the Limitation Act if the  

delay is satisfactorily explained.

4. In (Adusumilli)     Gopalakrishnayya     &     Anr  . v. Adivi  

Lakshmana     Rao   (supra), the facts were that an appeal had  

been presented by the appellant against a person who was  

dead at the time of presentation and the Full Bench of the  

Madras High Court took the view that although such an  

appeal may be incompetent owing to the wrong person being  

named as respondent, the Court which deals with it has full  

power under Section 153 of the CPC to direct an  

amendment of the appeal memorandum and if the appeal is  

out of time against the legal representatives, the Court will  

have to excuse the delay in presentation of the appeal before  

it in exercise of its discretion.  The Full Bench overruled the  

contrary view of a Division Bench of the Madras High Court  

in Govind     Kaviraj     Purohito   v. Gauranga     Sa   [AIR 1924 Madras  

56] that an appeal filed against a dead person has to be  

dismissed.  The Full Bench of the Madras High Court  

further held that Rule 6 of Order 15 of the Federal Court  

Rules, 1942, which dealt with substitution of the  

representative of one who is a party to an appeal and for  

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addition of party did not apply to a party who was dead at  

the time of filing of the appeal.  

5. The Calcutta High Court has taken a similar view in  

State     of     West     Bengal   v. Manisha     Maity   (supra) that Order  

XXII, Rule 4 of the CPC providing for the procedure for  

substitution of the heirs and legal representatives of the  

deceased defendants has no application when the appeal  

itself was preferred against a dead person.  The Division  

Bench of the Calcutta High Court, however, has suggested  

that in such a case:

“The remedy of an appellant, who has  unknowingly filed an appeal against a  dead person, is to file an application for  presentation of the appeal against the  heirs of the dead person afresh.  If the  time for filing the appeal was in the  meantime over, he is to present an  application, under Section 5 of the  Limitation Act, therein explaining the  delay in presenting the appeal afresh  against the heirs of the dead person.  If  he can make out sufficient cause for  making the belated prayer, the Court may  allow the same, amend the cause title of  the memorandum of appeal by  incorporation of the names of the heirs  and legal representatives of the dead  person and treat the appeal as a freshly  presented appeal against the heirs.”  

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6. Thus, the aforesaid authorities are clear that where a  

party has been impleaded as respondent in an appeal but  

such respondent was dead before filing of the appeal, the  

remedy of the appellant is not to file an application for  

substitution of legal representatives of such respondent, but  

to file an application for an amendment of the appeal  

memorandum and in a case where such application for  

amendment is filed beyond the limitation prescribed for  

filing the appeal, the appellant must also file an application  

under Section 5 of the Limitation Act for condonation of  

delay in filing the application for amendment and if the  

Court is satisfied with the explanation given by the  

appellant for the delay, the Court can condone the delay  

and allow the amendment of the appeal memorandum.  

7. Order XVI of the Supreme Court Rules, 1966 is titled  

“Appeals by Special Leave”.  Rules 8 and 9 in Order XVI  

which provide for substitution and addition of parties are  

extracted hereinbelow:

“8. Where any person is sought to be  impleaded in the petition as the legal  representative of any party to the proceedings  

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in the Court below, the petition shall contain  a prayer for bringing on record such person  as the legal representative and shall be  supported by an affidavit setting out the facts  showing him to be the proper person to be  entered on the record as such legal  representative.

9.  Where at any time between the filing of  the petition for special leave to appeal and  the hearing thereof the record becomes  defective by reason of the death or change of  status of a party to the appeal or for any  other reason, an application shall be made to  the Court stating who is the proper person to  be substituted or entered on the record in  place of or in addition to the party on record.  Provisions contained in rule 33 of Order XV  shall apply to the hearing of such  applications.”

Considering the authorities discussed above, the aforesaid  

provisions of Order XVI Rules 8 and 9 will apply where at  

the time of filing of the Special Leave Petition, the  

respondent was alive and after the filing of the Special Leave  

Petition his legal representatives are sought to be  

substituted, but will not apply where the respondent was  

dead when the Special Leave Petition was filed.  Where the  

respondent was dead when the Special Leave Petition was  

filed, the Court can, in the interest of justice, allow an  

application for amendment of the Special Leave Petition and  

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condone the delay in filing such an application for  

amendment if the delay is satisfactorily explained.  

8. I.A. No.2 of 2011 is, therefore, treated as an  

application for amendment of the Special Leave Petition and  

as the delay in filing the application for amendment of the  

Special Leave Petition has been satisfactorily explained in  

I.A. No.3 of 2011, the delay is condoned and in the interests  

of justice, I.A. Nos. 2 and 3 of 2011 are allowed.  The  

prayers in I.A. Nos. 4 and 5 are for exemption from filing  

official translation and from filing death certificate of the  

deceased and are allowed.  I.A. No.6 of 2011 is for deletion  

of proforma respondent No.2 Ajaib Singh, who appears to be  

the attorney of the contesting respondent No.1, and is  

allowed at the risk of the petitioner.   The I.As. stand  

disposed of.

…………………….J.                                                           (A. K. Patnaik)

New Delhi, November 02, 2012.

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