THE HON’BLE MR JUSTICE L. NARASIMHA REDDY + C.M.A.Sr.No.13431 & C.M.A.No.1055 of 2000 COMMON JUDGMENT: % 03-11-2009 Between: Vemuri Krishna Prasad …Appellant And Ghorpade Radha Bai …Respondent ! Counsel for Appellant : Sri P. Rajasekhar ^ Counsel for Respondents : Sri T.S. Anand < Gist: > Head Note: ? CITATIONS: 1) AIR 1993 SC 2324 2)AIR 1978 AP 279 3)AIR 1976 AP 65 THE HON’BLE MR JUSTICE L. NARASIMHA REDDY C.M.A.Sr.No.13431 & C.M.A.No.1055 of 2000 COMMON JUDGMENT: These two Civil Miscellaneous Appeals are filed by the same individual, and arise out of O.S.No.261 of 1991, on the file of the I Additional Senior Civil Judge, Vijayawada. Hence, they are disposed of through common judgment. The relevant facts, that gave rise to the filing of the appeals, are as under: The appellant filed the suit for the relief of specific performance of an agreement of sale dated 16-01-1988 against Ghorpade Radha Bai, the sole defendant, and impleaded as respondent No.1 in both the appeals. He pleaded that the sole defendant agreed to sell the suit schedule property, a residential building, with open site, in Door No.25-7-33, Seethannapet, Vijayawada, for a consideration of Rs.3,45,000/-. Advance of Rs.10,000/- is said to have been paid on the date of agreement. It was stated that though the appellant promised to pay the balance of consideration, and made several demands, the defendant did not fulfill her part of the obligation. The suit was filed on 03-06-1991. On the notice sent to the defendant, it was endorsed that she died on 31-03-1991. Thereupon the appellant filed I.A.No.6270 of 1991, under Order I Rule 10 C.P.C., with a prayer to implead the legal representatives of the sole defendant, as parties to the suit. The I.A. and the suit were coming up for hearing for quite a long time. On 18-06-1999, the trial Court dismissed the suit, as well as the I.A.No.6270 of 1991, for default. The appellant filed I.A.No.574 of 1999 under Order IX Rule 9 C.P.C., with a prayer to set aside the order, dismissing the suit. I.A.No.575 of 1999 is similar application, for restoration of I.A.No.6270 of 1991. Through its orders dated 09-11-1999, the trial Court dismissed both the applications. Hence, these two appeals. Sri P. Rajasekhar, learned counsel for the appellant, submits that the trial Court proceeded on the assumption that the suit abated, on account of the death of the sole defendant, and in that view of the matter, the dismissal thereof, was almost superfluous. He contends that the appellant was under the impression that the sole defendant was alive, and soon after he came to know about the death of the defendant, application was filed under Order I Rule 10 C.P.C. He also submits that the suit and I.A., were pending in the trial Court, without any progress, for about eight years, and an occasional absence, of the counsel for the appellant in the trial Court, must not have resulted in termination of the proceedings, for default. He places reliance upon certain decided cases. Sri T.S. Anand, learned counsel for the respondent, on the other hand, submits that, when the suit was filed against a dead person, any steps taken in it, were of no legal consequence. He contends that the suit was presented three months after the sole defendant died, and the vague cause of action, pleaded in the plaint, was without any basis. Learned counsel further contends that even otherwise, the suit for specific performance, on the basis of an alleged payment of negligible amount, cannot be restored, at this length of time. The appellant instituted the suit against the sole defendant on 03-06-1991. It emerged that the defendant died on 31-03-1991 itself. Thereupon he took prompt steps to implead the legal representatives of the deceased-defendant, under Order I Rule 10 C.P.C. The record discloses that the I.A was pending for about eight years, by the time the suit and the I.A. came to be dismissed for default on 18-06-1999. In the order passed on the application filed under Order IX Rule 9 C.P.C., the trial Court discussed the circumstances under which, the suit came to be dismissed. A pausing observation was made to the effect that the suit has abated, on account of the failure of the appellant to take steps, to bring the legal representatives of the deceased- sole defendant, on record. Therefore, the contentions advanced on behalf of the appellant cover, a) the circumstances, that led to the dismissal of the suit and I.A., for default, and b) the view expressed by the trial Court, that the suit abated. The second aspect needs to be dealt with first. It has already been mentioned that the trial Court did not base its conclusion on the ground that the suit abated. If that were to be so, the very dismissal of the suit, for default, was superfluous. However, the doubt expressed by the trial Court, in this regard, needs to be clarified. It is not uncommon that the parties file suits under the bona fide impression that the persons, against whom they are claiming the relief, are alive. If it emerges that the suit was filed against a dead person, one is prone to jump to the conclusion, that there is hardly anything, that can be done in the suit, and the only remedy for the plaintiff is to institute fresh suit against the legal representatives of the deceased-defendant. Justification can also be provided for this view, by stating that the occasion to bring the legal representatives would arise, if only a person, that figured as a party was alive, when the proceedings were instituted; died subsequently, and that the question of bringing the legal representatives does not arise, when the person was not alive at all, by the time, the suit was filed. Complications of different magnitude would arise, if a suit of the nature, indicated above, is to be just given a burial, without any further steps. Questions of limitation would crop up. If the initial presentation itself was at the fag end of the period of limitation, a subsequent suit against the legal representatives may become barred. The plaintiff may have to pay the Court fee, once again, and he would be burdened to that extent. Taking the original documents, that have been filed, would involve an exercise by itself. Obviously, to remedy all these eventualities, the Parliament enacted Section 21 of the Limitation Act. The provision reads as under: “Sec.21: Effect of substituting or adding new plaintiff or defendant. (1) Where after the institution of a suit, a new plaintiff or, defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party: Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. (2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff”. The question as to whether this provision covers the cases, where the sole defendant was found to be not alive, as on the date of the suit, was considered by the Hon’ble Supreme Court in Karuppaswamy v. C. Ramamurthy[1]. It was held that the provision would certainly cover such a situation. To the same effect is the judgment of this Court in Rasetty Rajyalakshmamma v. Rajamuru Kannaiah[2]. In Khaja Begum v. gulam Mohiuddin[3], a Division Bench of this Court held that, Section 153 C.P.C. enables the parties, and in particular, the plaintiff, to take necessary steps, to meet such a contingency. From the above, it is clear that mere fact that the sole defendant in a suit was found to be not alive, does not lead to automatic abatement of the suit. The plaintiff in such a suit, would certainly be entitled to file an application under Order I Rule 10, or Order XXII Rule 4 C.P.C., to bring the concerned parties on record. Therefore, the small doubt, expressed by the trial Court, that the suit abated, on account of the death of the sole defendant, before the suit was filed, cannot be treated as well-founded. Coming to the merits of the case, the very fact that no progress has taken place in an application filed under Order I Rule 10 C.P.C., for a period of eight years, discloses the laxity with which the appellant was pursuing the matter. It was observed by the trial Court that the I.A was coming up for enquiry for years together. Though the cause for dismissal of the suit and application may appear to be the incidental absence of the counsel on a particular day, the background of the case cannot be overlooked. This is not a case where an accident at absence of the counsel or the party led to the dismissal of the suit, after eight years of institution thereof. The trial Court perused the record and formed an opinion, that there do not exist any valid reasons for restoration of the suit and I.A. This Court is not inclined to take a different view. Even otherwise, the effect of restoration of the suit would be, to enable the appellant, to enforce an agreement of sale, of the year 1988, on the basis of alleged payment of Rs.10,000/-, for a property, which was valued at Rs.3,45,000/-, twenty years ago. The remedy of specific performance of contract is discretionary. Passage of any time would have its own impact on the exercise of discretion. Viewed from any angle, this Court does not find ay basis to interfere with the orders under appeals. The Civil Miscellaneous Appeals are accordingly dismissed. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.03-11-2009. Note: L.R. copy to be marked. (B/O) KO* [1] AIR 1993 SC 2324 [2] AIR 1978 AP 279 [3] AIR 1976 AP 65