Suit filed against dead person is a nullity, substitution of LR’s under Order 22 Rule 4 of the Code of Civil Procedure, 1908 is not permissible

In the matter of Laxminarayan & Ors V. Jankibai Died Through Lrs Smt. Suman @ Shakuntala & Ors decided by the Hon’ble High Court of Madhya Pradesh (Civil Revision No. 591 Of 2023) on 23.02.2023.

FACTS: The original suit was filed by the plaintiffs/ revisioner for declaration of their title to the suit land and for permanent prohibitory injunction. However, a legal representative of the deceased Defendant No. 2 filed an application for the dismissal of the suit on the ground that the same has been instituted against dead persons. In view of the said Application, the Plaintiffs preferred an application of withdrawal with liberty to file afresh however, the said application was dismissed by the trial court. The trial court reasoned the order by stating that the defendants 1 to 3 had expired prior to the filing of the suit itself and since the suit was filed against dead persons, the same does not fall within the category of a ‘formal defect’ and goes to very root cause of the matter. This order was challenged by the plaintiffs by way of Revision under Section 115 of the CPC.

ISSUE: Whether institution of the suit by Plaintiffs against the deceased Defendants who had already expired prior to institution would be a formal defect and would not go to the root of the matter in which case the provisions of Order 23 Rule 1(3) of the CPC would be applicable.

OBSERVATIONS: The Hon’ble Court while relying on the judgments in Naseem Hushain and Another V/s. Smt. Mahender Kaur and Another 2015 SCC OnLine P&H 8414, of the Bombay High Court in Indana International Limited V/s. Santana Miguel Fernandis and Another 2007 SCC OnLine Bom. 381 and of this Court in Thakur Deen Singh (dead) through Legal Representatives Rampratap Singh and Others V/s. Surendra Singh @ Radhika Singh 2017 (2) MPLJ 580 observed that a suit instituted against a dead person believing him to be alive on the date of filing of the suit but later on being discovered that he/ she has already expired is a nullity since the very inception and would be deemed not to have been instituted at all and goes to root of the matter. Since the suit was against a dead person in the present matter, substitution of legal representatives was also not be permissible under the provisions of Order 22 Rule 4 of the CPC.

Finally, it was held that as the suit was already filed and was at its initial stage, a prayer for its withdrawal ought to have been permitted with liberty to file a fresh suit on the same cause of action. Hence, the present revision was allowed, and the Plaintiffs were allowed to withdraw the suit under Order 23 Rule 1 with liberty to file afresh.