Order 22 Rule 4 CPC | Suit Filed Against Dead Person A Nullity, Substitution By LRs Not Permissible: Madhya Pradesh High Court

The Madhya Pradesh High Court has reiterated that when a suit is instituted against a dead person, it falls within the category of a ‘formal defect’ and the plaintiffs can be allowed to withdraw the suit with liberty to file a fresh suit.

When the suit itself is a nullity owing to the fact that it has been instituted against dead persons, further substitution of them by legal representatives won’t be permissible, the single judge bench of Justice Pranay Verma at Indore remarked.

“Thus, the principle which emerges is 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 has already expired, is a nullity since the very inception. The same shall be deemed not to have been instituted at all. Since the suit is against a dead person, substitution of legal representatives would also not be permissible under the provisions of Order 22 Rule 4 of the CPC. However, since the suit has already been filed, which is its physical aspect, a prayer for its withdrawal ought to be permitted with liberty to file a fresh suit on the same cause of action”, the court laid down in unequivocal terms.

The court, therefore, allowed the application filed by the plaintiffs under Order 23 Rule 1(3) of CPC. The plaintiffs were allowed to withdraw the suit and file a fresh suit as permissible under the law.

To reach the above conclusion, the court placed its reliance on Thakur Deen Singh (dead) through Legal Representatives Rampratap Singh and Others v. Surendra Singh @ Radhika Singh (2017). In the said case, the High Court had relied upon various apex court judgments to hold that a formal defect such as a suit being instituted against a dead person can be a valid ground to withdraw the suit.

The respondent, on the other hand, contended that the institution of suit against a dead person can’t be regarded as a ‘formal defect’ as argued by the plaintiffs/petitioners. As per the respondent, the factum of the institution against a dead person itself ‘strike at the very root of the matter/ suit’ and Order 23 Rule 1(3) of the CPC wouldn’t apply.

The suit was filed by the plaintiffs for declaration of their title to the suit land and for permanent prohibitory injunction. Meanwhile, 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. The said application was dismissed by the trial court. Later, when the plaintiffs filed another application under Order 23 Rule 1(3) of the CPC to withdraw the suit with liberty to institute a fresh suit, the same was also rejected by the trial court. The trial court reasoned the above order by stating that the defendants 1 to 3 had expired prior to the filing of the suit itself. According to the trial court, their legal representatives couldn’t be brought on record. Since the suit was filed against dead persons, the same does not fall within the category of a ‘formal defect’, the trial court added. This order was challenged by the plaintiffs by way of Revision under Section 115 of the CPC.

Case Title: Laxminarayan S/o Late Shri Bheraji & Ors V. Jankibai W/o Late Shri Raghunath Died Through Lrs Smt. Suman @ Shakuntala & Ors.

Case No: Civil Revision No. 591 Of 2023

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