1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.349 OF 2003 Kirtikumar Prabhashankar Rawal ..Petitioner Age : 45 years, Occu : business Residing at Agrawal Nagar, Near Bhatwal Hospital, Malegaon Road, Dhulia, District - Dhule V/s. 1. The New India Assurance Company ..Respondents Limited, having its registered office at New India Assurance Building, 87, Mahatma Gandhi Road, Fort, Bombay – 400 003 2. M. G. Industries, Malegaon A registered Partnership Firm at Seygaon, (Malegaon), District - Nashik Mr. P. N. Karlekar, Advocate, for the Petitioner None for the Respondents CORAM : A.S.OKA, J. DATE : 19TH APRIL, 2010 JUDGMENT . Heard the learned Counsel appearing for the Petitioner. None appears for the 1st and 2nd Respondents. The said Respondents filed a money suit claiming a money decree of 2 Rs.1,23,200/- together with interest thereon. The Petitioner's deceased father was the 2nd Defendant. The suit was filed on 7th November, 1983. It appears that summons of the suit was ordered to be served by substituted service in the form of publication in the News Paper. The summons was published in the News Paper on 21st October, 1991. An application was made by the Petitioner in his capacity as the son of the 2nd Defendant pointing out that the 2nd Defendant died on 7th November, 1983 who was the sole Proprietor of the 1st Defendant. Therefore, a prayer was made for dismissing the suit as against the 1st and 2nd Defendants in as much as the 2nd Defendant died prior to institution of the suit, who was the sole Proprietor of the 1st Defendant. 2. The aforesaid application was made on behalf of the 1st and 2nd Defendants on 27th November, 1995. An application was made at Exhibit 20 by the 1st and 2nd Respondents contending that the Petitioner, who was the legal representative of the deceased - 2nd Defendant, was a necessary party to the suit. Therefore, a prayer was made that the Petitioner be impleaded as a defendant to the suit. By Order dated 29th 3 June, 1995 the said application was allowed. The Petitioner made an application at Exhibit 34 for dismissal of the suit on the ground that the application at Exhibit 20 was hopelessly barred by limitation and no application was made for condonation of delay and for setting aside the abatement. By the impugned Judgment and Order dated 2nd August, 2002, the said application made by the Petitioner at Exhibit 34 was rejected by the trial Court. The learned trial Judge observed that the Petitioner failed to avail an opportunity to contest the applications at Exhibits 20 and 21. The Trial Court observed that an application at Exhibit 21 was made by the 1st and 2nd Respondents-Plaintiffs for setting aside the abatement of the suit as against the Defendant No.2. The learned trial Judge observed that merely because the abatement was not set aside by passing an Order on application Exhibit 20, it will not vitiate the Order. The trial Court however observed that this was not a case where inherent powers under Section 151 of the Code of Civil Procedure, 1908 could have been exercised by setting aside the Order below Exhibit 20. 3. I have heard the submissions of the learned Counsel 4 appearing for the Petitioner. If the application at Exhibit 20 made by the Respondent Nos.1 and 2 is perused, it purports to be an application for impleading the Petitioner, who was legal representative of the original 2nd Defendant, as a party Defendant. It is not in dispute that the 2nd Defendant died on 7th November, 1983 and the suit is filed in the year 1984. The suit was filed against a dead person. In the circumstances, the Court was powerless to set aside the abatement in as much as there was no question of abatement of the suit as the suit was filed against a dead person. At the highest the original Plaintiff could have applied for impleading the Petitioner as a Defendant under Rule 10 of Order I of the said Code. Such application would have been governed by Section 21(1) of the Limitation Act, 1963. Perusal of the Order dated 29th June, 1995 passed on the said application at Exhibit 20 shows that the trial Court has purported to bring the Petitioner on record of the suit as legal representative of the deceased Defendant No.2. Even the Order below Exhibit 34 proceeds on assumption that the Petitioner was ordered to be brought on record as the legal representative of the 2nd Defendant. 5 4. A prayer in application at Exhibit 34 was for dismissal of the suit. The perusal of the averments made in the said application show that the contention of the Petitioner was that there was no application for condonation of delay made by the Respondent Nos.1 and 2 and in any event, the suit filed against a dead person was a nullity. There is an obvious error in the Order passed below the application at Exhibit 20 in as much as there was no prayer made for bringing the Petitioner on record of the suit as a legal representative of the 2nd Defendant, but the prayer was for in fact impleading the Petitioner as a party Defendant. While deciding the application at Exhibit 34, the trial Court ought to have noted the said error which goes to the root of the matter. Without noticing the error, the trial Court held that the abatement has been set aside. There was no occasion to set aside any Order of abatement as the 2nd Defendant was already dead on the date of the institution of the suit. The suit as against the 2nd Defendant was nullity. 5. Though, the prayer made in the application at Exhibit 34 for dismissal of the suit cannot be granted at this 6 stage, a limited relief will have to be granted on the application at Exhibit 34 by setting aside the Order below application Exhibit 20. The prayer made in the said application will have to be reconsidered by the trial Court under Sub Rule 2 of Rule 10 of Order I of the said Code. The Trial Court will have to also consider Section 21 of the Limitation Act, 1983. 6. Hence, I proceed to pass the following Order. (i) The impugned Order dated 2nd August, 2002 passed below Exhibit 34 is quashed and set aside. (ii) The application at Exhibit 34 is partly allowed. (iii) The Order dated 29th June, 1995 passed below Exhibit 20 is quashed and set aside and the said application at Exhibit 20 is restored to the file of the trial Court. The said application shall be considered in accordance with law under Sub Rule 2 of Rule 10 of Order I of the Code of Civil Procedure, 1908. (iv) Before deciding the application at Exhibit 20 on merits, the trial Court will give an opportunity to the Petitioner to file a reply to the said application. (v) Certain amount has been deposited by the Petitioner with the trial Court as per interim Order passed by this Court. The said amount will remain invested in Fixed Deposit till the disposal of the application at Exhibit 20. 7 (vi) If application at Exhibit 20 is rejected, it is obvious that the trial Court will permit the Petitioner to withdraw the said amount with interest accrued thereon, if any. (vii) If the application is allowed, the trial Court will pass appropriate Order of investment of the said amount till the disposal of the suit. (viii) All contentions of the parties on application at Exhibit 20 are expressly kept open. (ix) Rule is made partly absolute in the above terms with no orders as to costs. (A.S.OKA, J.)