Hon’ble Supreme Court in a case of “Gurcharan Singh vs. Surjit Singh &
Anr.” [I.A. No. 2 to 6, in Special Leave Petition (C) No. 7735 of 2010,
application decided on 2nd Nov. 2012] has 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.” [Para No. 6]
SC observed that:
“Order XVI
of the Supreme Court Rules, 1966 is titled “Appeals by Special Leave”. Rules 8 and 9 in Order XVI which provide for substitution
and addition of parties are extracted hereinbelow:
“8. Where any person is sought to be impleaded in
the petition as the legal representative of any party to the proceedings in the
Court below, the petition shall contain a prayer for bringing on record
such person as
the legal representative and
shall be supported by an affidavit setting out the
facts showing him to be the proper person to be
entered on the
record as such
legal representative.
9. Where
at any time between the
filing of the
petition for special leave to
appeal and the hearing thereof the record
becomes defective by reason of
the death or change of status of a party
to the appeal or for any other reason, an application shall be made to the Court stating who is the proper
person to be
substituted or entered on the
record in place of or in addition to
the party on record.
Provisions contained in rule 33 of Order XV shall apply to the hearing
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. [Para 7]