1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9928 OF 2009 Shri Suresh Harischandra Vaygankar. .. Petitioner Vs Late Smt. Sitabai Patilba Jondhle, since deceased through Legal Heirs, Mr. Machindra Palba Jondhle. .. Respondent -- Shri A.A. Garge i/by Shri Mahendra Agavaekar for the Petitioner. Shri Ajay S. Gadkari for the Respondent. -- CORAM : A.S.OKA, J. DATE : 26TH APRIL, 2010 P.C: . Heard the learned counsel appearing for the Petitioner and the learned counsel appearing for the Respondent. The challenge in this Writ Petition under Article 227 of the Constitution of India is to the orders dated 12th August, 2009 and 30th September, 2009. The Petitioner is the Defendant and the Respondent is the Plaintiff. The suit was filed in the name of one Sitabai Jondhle as the Plaintiff by the present Respondent though the suit was signed and verified by the Respondent. After service of the suit summons, the Petitioner made an application for dismissal of the suit on the ground that the same was filed in the name of a dead Plaintiff. 2 The learned Trial Judge passed an order dated 12th August, 2009 noting that thought the suit was filed in the name of the dead person, the same was signed by the Respondent who was the son of the dead plaintiff. Therefore, the Court exercised the power under Rule 10 of Order I of the Code of Civil Procedure, 1908 ( hereinafter referred to as the said Code ) by permitting substitution of the name of the dead Plaintiff by the name of the Respondent. 2. It appears that the plaint was amended in terms of the order dated 12th August, 2009. On the next date i.e. 16th September, 2009, the Petitioner tendered a Written Statement. It appears that the written statement was not taken on record as it was belatedly filed. An application was made by the Petitioner at Exhibit – 19 for setting aside an order dated 16th September, 2009 and for taking written statement on record. In substance, the application at Exhibit – 19 was for review of the order dated 16th September, 2009. By an order dated 30th September, 2009, the said application was rejected. The challenge in this Writ Petition under Article 227 of the Constitution of India is to the aforesaid orders dated 12th August, 2009 and 30th September, 2009. 3. The submission of the learned counsel appearing for the Petitioner is that the Trial Court had no occasion to pass an order dated 12th August, 2009 as there was no application made by the Respondent under Rule 10 of Order I of the said Code. He submitted that as the suit was filed 3 in the name of a dead person, it was nullity and therefore, there was no occasion for the Trial Court to pass the order dated 12th August, 2009. He submitted that in any event written statement was tendered on record on 16th September, 2009 within a period of 30 days from the date on which amended plaint was served to the Petitioner, and therefore, the written statement ought to have been taken on record. The learned counsel appearing for the Respondent supported the impugned order. 4. I have considered the submissions. It appears from the impugned order dated 12th August, 2009 that after an objection was raised by the Petitioner pointing out that the suit was filed in the name of a dead person, an oral submission was made by the learned counsel appearing for the Respondent that an order may be passed under Rule 10 of Order I of the said Code permitting substitution of the dead plaintiff by the Respondent who was her son who had already signed and verified the plaint. It is true that there was no application in writing made by the Respondent praying for exercise of power under Rule 10 of Order I of the said Code. However, the effect of the impugned order dated 12th August, 2009 is that the Respondent’s name has been permitted to be substituted in place of the deceased Plaintiff. This order was passed considering the peculiar fact that though the name of the deceased mother was shown as the Plaintiff, the Plaint was signed and verified by the Respondent who was her son. The effect of the order is that the name of the son has been substituted as the Plaintiff. The power is exercised under Rule 10 of Order I 4 of the said Code. Therefore, in view of Section 21(1) of the Limitation Act, 1963 the suit shall be deemed to have been filed by the son of the deceased Plaintiff on the date on which the amendment is carried out to the plaint for impleading him as a party Plaintiff. The period of limitation will have to be computed from the said date. In the circumstances, it is not possible to interfere with the discretionary order dated 12th August, 2009 passed by the Trial Court. 5. By an order dated 12th August, 2009, an error has been permitted to be corrected and the name of the son of the deceased Plaintiff has been brought on record as the Plaintiff. The amended plaint was filed on record on 26th August, 2009. In view of what is observed above, the suit shall be deemed to have been filed when the amendment was carried out in terms of the order dated 12th August, 2009. The Written Statement was tendered on record by the Petitioner on 16th September, 2009. Thus, there was no delay in filing the written statement and the same ought to have been taken on record. 6. Hence, I passed the following order. (a) The impugned order dated 12th August, 2009 is confirmed subject clarification made above. (b) The impugned order dated 30th September, 2009 is quashed and set aside. 5 (c) The Application at Exhibit – 19 is allowed. (d) The Trial Court shall take Written Statement of the Petitioner on record. (e) The Petition is partly allowed in above terms with no orders as to costs. (A.S.OKA, J)