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2017 DIGILAW 798 (ALL)

ASHISH v. DASS HITACHI LTD.

2017-03-21

MANOJ MISRA

body2017
JUDGMENT Hon’ble Manoj Misra, J.—The present petition under Article 227 of the Constitution of India has been filed challenging orders dated 28th November, 2016 and 27th February, 2017, passed in Original Suit No. 901 of 2016 and Civil Revision No. 84 of 2016, respectively. 2. A perusal of the record would reveal that the plaintiff-respondent, on 7th November, 2016, instituted a suit for permanent injunction against one Ved Prakash. On 7.11.2016 ex parte injunction order directing parties to maintain status quo was granted fixing 15.11.2016 for further hearing on interim injunction application. It appears that when, on 9.11.2016, the Court appointed amin served summons on the defendant, the same was received by Ashish (the petitioner), who described himself as son of late Ved Prakash. Immediately, on 9.11.2016, the plaintiff filed an application, purportedly, under Order VI Rule 17 CPC for amendment in the plaint so as to add “Ashish son of Late” in front of the name of defendant Ved Prakash as also to delete the words “major son of sh. Beer Singh” after the name of Ved Prakash. It was pleaded that the officials of the plaintiff throughout recognised the defendant as Ved Prakash and only when the amin had approached the defendant for service of summons that the actual identity of the defendant could be known therefore amendment be allowed. The amendment was opposed claiming that the suit was instituted against a dead person and as such was non est and further the story set up that the petitioner had held out as Ved Prakash is bogus and imaginary. The Court below allowed the amendment vide impugned order dated 28.11.2016 by placing reliance on decision of the Apex Court in Karuppaswamy v. C. Ramamurthy, (1993) 4 SCC 41 . Against the order of the trial Court, revision was filed which was dismissed by impugned order dated 27.2.2017. 3. Assailing the impugned orders the learned counsel for the petitioner submitted that a suit against a dead person is non est therefore the suit has to die its natural death and no amendment can be allowed. The only option is to bring a fresh suit. It has also been submitted that Ved Prakash had died on 11.1.2014 therefore the case set up that the petitioner had been holding himself out as Ved Prakash is not bona fide. Hence, the Court committed manifest error in allowing such amendment. 4. The only option is to bring a fresh suit. It has also been submitted that Ved Prakash had died on 11.1.2014 therefore the case set up that the petitioner had been holding himself out as Ved Prakash is not bona fide. Hence, the Court committed manifest error in allowing such amendment. 4. The first contention of the learned counsel for the petitioner that no amendment to implead proper party can be allowed in a suit if it has been instituted against a sole defendant who is dead, cannot be accepted in view of the decision of the Apex Court in Karuppaswamy’s case (supra), wherein the Apex Court after considering the provisions of Section 21 of the Limitation Act, 1963 as well as corresponding Section 22 of the old Limitation Act, 1908, in paragraph 4 of the report, observed as follows: “4. A comparative reading of the proviso to sub-section (1) shows that its addition has made all the difference. It is also clear that the proviso has appeared to permit correction of errors which have been committed due to a mistake made in good faith but only when the Court permits correction of such mistake. In that event its effect is not to begin from the date on which the application for the purpose was made, or from the date of permission but from the date of the suit, deeming it to have been correctly instituted on an earlier date than the date of making the application. The proviso to sub-section (1) of Section 21 of the Act is obviously in line with the spirit and thought of some other provisions in Part III of the Act such as Section 14 providing exclusion of time of proceeding bona fide in Court without jurisdiction, when computing the period of limitation for any suit, and Section 17(1) providing a different period of limitation starting when discovering a fraud or mistake instead of the commission of fraud or mistake. While invoking the beneficient proviso to sub-section (1) of Section 21 of the Act an averment that a mistake was made in good faith by impleading a dead defendant in the suit should be made and the Court must on proof be satisfied that the motion to include the right defendant by substitution or addition was just and proper, the mistake having occurred in good faith. The Court’s satisfaction alone breathes life in the suit.” 5. Following the above decision of the Apex Court, the Bombay High Court in Sureshchandra B. Agrawal and others v. Mansukhbhai H. Doshi and others, AIR 1996 Bombay 118, held that the test, which is to be applied in such case, is whether the mistake in filing the suit was made in good faith or it is on account of any neglect or contumacy to the conduct of the plaintiffs. If there is no neglect or lack of bona fides on the part of the plaintiffs, such application will be liable to be granted. The aforesaid Apex Court’s decision has also been followed by this Court in Javeed Khan v. Board of Revenue, 1995 ALJ 40, wherein it has been held that where a suit has been instituted against a dead person, the proper parties can be impleaded if the Court is satisfied that the mistake was in good faith. 6. Thus, the law as it stands is that when a suit is instituted against a sole dead person, the plaintiff can seek for impleadment/substitution of proper parties provided he satisfies the Court that the mistake in filing the suit was made in good faith and not on account of any neglect on the part of the plaintiff. 7. In the instant case, the plaintiff claimed that the petitioner Ashish Kumar had held himself as Ved Prakash and when the Court amin served the summons it was discovered that he was son of late Ved Prakash. Immediately, thereafter, the plaintiff applied for amendment/impleadment of Ashish Kumar son of late Ved Prakash, the petitioner herein. The objection filed by the petitioner to the application though denies the bona fides of the plaintiff in bringing the suit against a dead person but does not disclose any fact which may go to show that the plaintiff had been aware of the true identity of the petitioner or about the previous death of the original defendant Ved Prakash. The objection filed by the petitioner to the application though denies the bona fides of the plaintiff in bringing the suit against a dead person but does not disclose any fact which may go to show that the plaintiff had been aware of the true identity of the petitioner or about the previous death of the original defendant Ved Prakash. Under the circumstances, if the Courts below have recorded their satisfaction in respect of the bona fides of the plaintiff in occurrence of the mistake, keeping in mind the alacrity with which the plaintiff brought the amendment upon coming to know about the true identity of the defendant, the order passed by the Courts below does not suffer from any legal error which may call for interference in exercise of power of superintendence. 8. The petition is dismissed.