THE HON'BLE MR JUSTICE G.V.SEETHAPATHY CIVIL REVISION PETITION No:877 of 2009 ORDER: This Civil Revision Petition is directed against the order, dated 18.12.2008, in I.A.No.311 of 2008 in O.S.No.3 of 2008 on the file of the learned Senior Civil Judge, Parchur, wherein the said application filed by the petitioner herein under Order XXII Rule 4 and Section 151 CPC, seeking to bring the respondents 4 to 7 on record as legal representatives of the deceased-2nd defendant, was dismissed. 2. Heard both sides. Perused the records. 3. Petitioner-plaintiff filed the suit for cancellation of the sale deed, alleged to have been executed by his father in favour of the 2nd defendant. According to the petitioner, the suit property was gifted to him by his grand father when he was minor and that the petitioner’s father, without the knowledge of the petitioner, has alienated the suit property in favour of the 2nd defendant and at that time he was in Australia and he came to know of it after he came to India and therefore he filed the suit. The summons issued against the 2nd defendant were returned with an endorsement that 2nd defendant died about one year prior to filing of the suit. Thereafter, petitioner filed I.A.No.311 of 2008 seeking to implead respondents 4 to 7 as legal representatives of the deceased-2nd defendant. The proposed legal representatives filed a counter inter alia contending that the application and supporting affidavit were filed by the petitioner’s father by impersonating the petitioner, who was not in India at that time and thus, the application and the affidavit are forged and fabricated. The trial Court has not considered the said aspect at all and dismissed the application by the impugned order on the ground that the suit filed against a dead person is not maintainable. 4. Learned counsel for the petitioner would contend that by virtue of the proviso to Section 21 (1) of the Limitation Act, 1963 (for brevity, ‘the Act’), when the Court is satisfied that the omission to implead the proposed legal representatives of the deceased-2nd defendant was due to a mistake made in good faith, the Court may direct that the suit, as regards the proposed legal representatives, is deemed to have been instituted on any earlier date than the date on which the impleadment has taken place. In that connection, he relies upon a decision reported in KARUPPASWAMY AND OTHERS v. C.RAMAMURTHY[1], wherein the apex Court, in similar circumstances, held as follows: “The plaintiff filed a suit against a person not knowing that he had died 6 weeks prior to filing of the suit. The plaintiff became aware of the defendant’s death only from remarks on the returned summons. Immediately thereafter he filed an application under Order 22 Rule 4 for impleading legal representatives of the dead defendant. The trial Court did not attribute any neglect or contumacy to the conduct of the plaintiff. It was rather observed that the plaintiff could have known the date of the death of the defendant only by the date of the death of the defendant only by the counter filed to plaintiff’s application under Order 22 Rule 4 CPC. Normally, if the had known about the date of death of the defendant, he would have filed the suit in the first instance against his heirs and legal representatives. The High Court too recorded a finding that there was nothing to9 show that the plaintiff was aware of the death of the defendant and yet knowing well about it, he would persist in filing suit against a dead person Held that since the plaintiff had taken prompt action and had acted in good faith, the Proviso to S.21 (1) could be invoked in his favour and LRs of the deceased defendant could be impleaded”. 5. Learned counsel for the respondents does not dispute the proposition laid down in the above decision and he would contend that before the Proviso to Section 21 (1) of the Act can be pressed into service, petitioner has to establish that there was in fact a bona fide mistake on his part in not filing the suit, duly impleading the legal representatives of the deceased-2nd defendant, and the petitioner has to establish the same by adducing necessary evidence. According to the petitioner, as he was abroad he was not aware of the death of the deceased-2nd defendant. 6. In the above decision also, the apex Court observed that: “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 breaths life in the suit”. 7. A perusal of the impugned order would show that the trial Court has not considered the above aspects as to whether or not there was a bona fide mistake on the part of the petitioner-plaintiff in filing the suit against a deceased person-2nd defendant and whether or not the petitioner-plaintiff has pleaded and proved to the satisfaction of the Court that there was such a bona fide mistake. The trial Court has also not considered the contention raised by the respondents-proposed legal representatives in their counter that the application and the affidavit filed in support thereof are products of impersonation and fabrication at the instance of the petitioner’s father-1st respondent at a time when the petitioner was out of country. It is therefore considered a fit case to remand the matter to the trial Court for fresh consideration and pass appropriate orders on merits after giving opportunity to both sides to adduce evidence, if any, they choose. The impugned order is held unsustainable and the same is set aside and the matter is remanded to the trial Court for fresh disposal in accordance with law. The trial Court is directed to dispose of the application within a period of four months from the date of receipt of a copy of this order. 8. In the result, Civil Revision Petition is allowed. ______________________ G.V.SEETHAPATHY,J 10th October, 2011. Tsy [1] AIR 1993 SUPREME COURT 2324