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 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 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 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 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.”
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 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 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.
