9911796707
TMI Blog2012 (11) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... dent No.1. The question which I have to decide is whether an application for substitution of a respondent who was dead when the Special Leave Petition was filed was maintainable, and if not, the remedy of the petitioner when he comes to learn that the respondent was actually dead when he filed the Special Leave Petition. 2. Learned counsel for the petitioner relied on the provisions of Order XXII of the Code of Civil Procedure, 1908 (for short "the CPC") as well as the amendments made thereto by the High Court of Punjab and Haryana and submitted that even where the respondent was dead when the Special Leave Petition was filed, his legal heirs can be substituted under these provisions of the C.P.C. He also relied on the decisions in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he filing of the appeal, must be treated as if appeal is filed for the first time against legal representatives of the deceased respondent and the delay in making the application is only to be excused under Section 5 of the Limitation Act if the delay is satisfactorily explained. 4. In (Adusumilli) Gopalakrishnayya & Anr. v. Adivi Lakshmana Rao (supra), the facts were that an appeal had been presented by the appellant against a person who was dead at the time of presentation and the Full Bench of the Madras High Court took the view that although such an appeal may be incompetent owing to the wrong person being named as respondent, the Court which deals with it has full power under Section 153 of the CPC to direct an amendment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resenting the appeal afresh against the heirs of the dead person. If he can make out sufficient cause for making the belated prayer, the Court may allow the same, amend the cause title of the memorandum of appeal by incorporation of the names of the heirs and legal representatives of the dead person and treat the appeal as a freshly presented appeal against the heirs." 6. Thus, the aforesaid authorities are clear 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring of such applications." Considering the authorities discussed above, the aforesaid provisions of Order XVI Rules 8 and 9 will apply where at the time of filing of the Special Leave Petition, the respondent was alive and after the filing of the Special Leave Petition his legal representatives are sought to be substituted, but will not apply where the respondent was dead when the Special Leave Petition was filed. Where the respondent was dead when the Special Leave Petition was filed, the Court can, in the interest of justice, allow an application for amendment of the Special Leave Petition and condone the delay in filing such an application for amendment if the delay is satisfactorily explained. 8. I.A. No.2 of 2011 is, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
