2012 (11) TMI 166 - SC - Indian Laws

Maintainability of Special Leave Petition - application for substitution of a respondent who was dead when the SPL was filed - Held that - Where a party has been impleaded as respondent in an appeal but such respondent was dead before filing of the appeal, the remedy of the appellant is not to file an application for substitution of legal representatives of such respondent, but to file an application for an amendment of the appeal memorandum and in a case where such application for amendment is filed beyond the limitation prescribed for filing the appeal, the appellant must also file an application under Section 5 of the Limitation Act for condonation of delay in filing the application for amendment and if the Court is satisfied with the explanation given by the appellant for the delay, the Court can condone the delay and allow the amendment of the appeal memorandum - provisions of Order XVI Rules 8 and 9 will apply at the time of filing of the SLP the respondent was alive and after the filing of the Special Leave Petition his legal representatives are sought to be substituted & not where the respondent was dead when SLP filed. I.A. No. 2 of 2011, an application for substitution of legal representatives of deceased respondent No.1. is to be treated as an application for amendment of the Special Leave Petition and as the delay in filing the application for amendment of the Special Leave Petition has been satisfactorily explained in I.A. No.3 of 2011, the delay is condoned and in the interests of justice, I.A. Nos. 2 and 3 of 2011 are allowed.

Issues:
1. Maintainability of application for substitution of a deceased respondent in a Special Leave Petition.
2. Applicability of Order XXII of the Code of Civil Procedure, 1908 in cases where the respondent was deceased at the time of filing the Special Leave Petition.
3. Interpretation of relevant legal provisions and case laws regarding substitution of legal representatives in appeals against deceased respondents.
4. Application of Order XVI Rules 8 and 9 of the Supreme Court Rules, 1966 in cases where the respondent was alive at the time of filing the Special Leave Petition.

Analysis:
1. The judgment deals with the issue of the maintainability of an application for substitution of a deceased respondent in a Special Leave Petition. The petitioner filed an application for substitution of legal representatives of a deceased respondent after discovering that the respondent had passed away before the filing of the petition. The question before the court was whether such an application was maintainable and what remedy was available to the petitioner in such a situation.

2. The petitioner relied on the provisions of Order XXII of the Code of Civil Procedure, 1908 and various case laws to argue that even if the respondent was deceased at the time of filing the Special Leave Petition, the legal heirs could be substituted under these provisions. The court examined the cited decisions and noted that the remedy in such cases is not to file for substitution of legal representatives but to seek an amendment of the appeal memorandum.

3. The court referred to several case laws to support its conclusion that in situations where the respondent was deceased before the filing of the appeal, the proper remedy for the appellant is to file an application for an amendment of the appeal memorandum. The court highlighted that the delay in filing such an application for amendment could be excused under Section 5 of the Limitation Act if satisfactorily explained.

4. The judgment also discussed the application of Order XVI Rules 8 and 9 of the Supreme Court Rules, 1966. It clarified that these rules apply when the respondent was alive at the time of filing the Special Leave Petition and legal representatives need to be substituted afterward. However, in cases where the respondent was deceased when the petition was filed, the court can allow an application for the amendment of the petition in the interest of justice.

In conclusion, the court allowed the application for amendment of the Special Leave Petition and condoned the delay in filing the same, emphasizing the importance of seeking an amendment rather than substitution of legal representatives in cases where the respondent was deceased at the time of filing the petition.

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