GURCHARAN SINGH Vs SURJIT SINGH (D) THR. LRS.
Bench: A.K. PATNAIK
Case number: SLP(C) No.-007735-007735 / 2010
Diary number: 2448 / 2010
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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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