Akhil v. Mohanan and Shylaaja

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY, THE 8TH DAY OF AUGUST 2018 / 17TH SRAVANA, 1940** **OP(C).No. 1736 of 2017** **AGAINST THE ORDER/JUDGMENT IN IA NO.550/14, 549/14 AND 535/14 IN AS 103/2011 of ADDL.DISTRICT COURT-I,MAVELIKKARA DATED 2.12.2016** ## **ORIGINAL PETITIONER/6TH RESPONDENT** **AKHIL** **AGED 26, S/O.PADMAKARAN, KOCHUVILAYIL (KOCHU THUNDIL), VALLIKKUNNAM MURI, VALLIKKUNNAM VILLAGE.** **BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP** **SRI.MANU SEBASTIAN SRI.P.J.JOE PAUL** ## **RESPONDENT(S)/APPELLANTS:** **1. MOHANAN AGED 46, S/O.RAGHAVAN, FROM SREE SHYLAM HOUSE, KUTTIVILAYIL PADEETTATHIL, VALLIKKUNNAM MURI, VALLIKKUNNAM VILLAGE.** **2. SHYLAJA W/O.MOHANAN, FROM SREE SHYLAM HOUSE,** **KUTTIVILAYIL PADEETTATHIL, VALLIKKUNNAM MURI, VALLIKKUNNAM VILLAGE.** **R1 & R2 BY ADV. SRI.B.RENJITHKUMAR** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01-08-2018, THE COURT ON 08-08-2018 DELIVERED THE FOLLOWING:** ## **OP(C).No. 1736 of 2017 (O)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 A TRUE COPY OF JUDGMENT DATED 08-06-2011 IN OS NO.211/08 ON THE FILE OF MUNSIFF'S COURT, KAYAMKULAM.** - **EXHIBIT P2 A TRUE COPY OF MEMORANDUM OF APPEAL IN AS NO.103/11 BEFORE THE ADDITIONAL DISTRICT AND SESSIONS COURT, MAVELIKKARA.** - **EXHIBIT P3 A TRUE COPY OF IA NO .550/14 IN AS NO.103/11.** - **EXHIBIT P4 A TRUE COPY OF OBJECTION FILED BY THE PETITIONER AND ANOTHER.** - **EXHIBIT P5 A TRUE COPY OF IA NO.549/14 FILED BY THE RESPONDENTS HEREIN.** - **EXHIBIT P6 A TRUE COPY OF OBJECTION FILED BY THE PETITIONER AND ANOTHER.** - **EXHIBIT P7 A TRUE COPY OF IA NO.535/14 FILED BY THE RESPONDENTS HEREIN.** - **EXHIBIT P8 A TRUE COPY OF OBJECTION FILED BY THE PETITIONER AND ANOTHER.** - **EXHIBIT P9 A TRUE COPY OF COMMON ORDER DATED 02-12-2016 IN I.A.NO.550/14, I.A.NO.549/14 AND I.A.NO.535/14 IN AS 103/2011 OF THE ADDITIONAL DISTRICT JUDGE I, MAVELIKKARA.** **//TRUE COPY//** **PS TO JUDGE.** jg-14/8 ASHOK MENON, J. -----------------------------------OP(C) No.1736 of 2017 ------------------------------------Dated this the 8[th] day of August, 2018 ## J U D G M E N T The common order at Ext.P9 in IA Nos.550/2014, 549/2014 and 535/2014 in AS No.103/2011 on the file of I Additional District Court, Mavelikkara dated 2.12.2016 stands impugned. 2. The facts in brief are thus: The appeal was filed challenging the decree and judgment in OS No.211/2008 on the file of Munsiff's Court, Kayamkulam. The aforesaid suit was filed by the respondents herein seeking a decree of perpetual prohibitory injunction against the persons impleaded as defendants therein alleging that they were trying to trespass and encroach upon a pathway described as plaint schedule item No.2, which is used by the plaintiffs therein for ingress and egress to item No.1, which is a residential plot, where they are staying. The suit had contested and written statements filed. The first defendant, namely Padmakaran, died during the pendency of the suit. But his legal representatives were not impleaded. Resultantly, the suit against him OP(C) 1736/2017 -2- abated on 20.9.2010. After proceeding with the trial against the second defendant, namely Velayudhan, the suit was dismissed with costs, vide Ext.P1 judgment dated 8.6.2011. Challenging that decree, AS No.103/2011 (Ext.P2) on the file of I Additional District Court, Mavelikkara was filed against the sole defendant, who is the second defendant in the suit. While the appeal was pending, the sole defendant therein also died on 24.5.2013. Consequent to his demise, the appellants filed Ext.P3 application to bring his legal heirs on record. Since, there was delay and abatement, applications were also filed for condonation of delay and setting aside the abatement. Eight persons were arrayed as respondents in the applications, who were sought to be impleaded, stating that they were the legal representatives of the deceased respondent. The petitioner herein, who is the sixth respondent, along with others filed Ext.P4 objections to the impleading petition disputing the status of the respondents sought to be impleaded as the legal heirs of deceased Velayudhan contending that respondents 1 and 2 in that petition are the wife and daughter of deceased Gopalan and respondents 5 to 7 are OP(C) 1736/2017 -3- the wife and children of deceased Pandmakaran, the original first defendant, against whom the suit has already abated. It is stated that the actual legal heirs of the only defendant, Velayudhan, are not sought to be impleaded. Ext.P7 is IA No.549/2014 for setting aside the abatement and Ext.P8 is IA No.535/2014 for condonation of delay of 361 days in filing the impleading petition. 3. The petitioner herein contends that without adverting to the facts and circumstances and totally disregarding the law on the point, the court below vide the impugned order dated 2.12.2016 allowed the applications and directed that the respondents be impleaded, without adjudicating the question whether they are the legal heirs of the deceased Velayudhan, the only surviving respondent in the appeal. Hence, the petitioner herein is before this Court challenging the impugned order of impleadment, under Article 227 of the Constitution of India. 4. The order of the learned District Judge is very brief. It is stated that the respondents had disputed the fact that they are the legal heirs of Velayudhan and therefore, “without adjudicating the OP(C) 1736/2017 -4- disputed question whether the persons who are sought to be impleaded are the legal heirs of Velayudhan, petitioners 5 to 8 are impleaded, as the case of appellant is that they are obstructing the pathway. Application allowed accordingly.” 5. The learned counsel appearing for the petitioner referred to Order-XXII Rule 5 of the Code of Civil Procedure, a reading of which would be appropriate: “Order XXII Rule 5 : Determination of question as to legal representative:- Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court: Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question.” It is argued that under the Rule when a question arises regarding as to whether a person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court, and the proviso states that before determining OP(C) 1736/2017 -5- the question, the Appellate Court can also direct the subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons when the question arises before an Appellate Court. Hence, it was improper on the part of the learned District Judge to have left the disputed question without adjudication. 6. Per contra, the learned counsel appearing for the respondents herein would argue that what is stated in Order XXII Rule 5 CPC is 'legal representative', which is distinguishable from the word 'legal heirs'. The petitioner herein would contend that the persons sought to be impleaded are not the legal heirs of deceased Velayudhan. But that may not be required, since for continuation of the suit based on a cause of action, it may not be necessary to implead and bring on record the legal heirs of the deceased. The learned counsel reads out the definition of 'legal representative' as provided in Section 2(11) of the CPC, which reads thus: “2(11) “legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a OP(C) 1736/2017 -6- representative character the person on whom the estate devolves on the death of the party so suing or sued;” 7. A legal heir is an inheritor in the order of succession in accordance with the provisions of Section 3(1) the Hindu Succession Act, 1956, who is entitled to succeed to the estate of the deceased, whereas a legal representative as defined in the CPC is only a person who represents the estate of the deceased and would also include any person who intermeddles with the estate of the deceased. 8. The learned counsel for the plaintiffs sued for injunction simpliciter and the allegation in the plaint is that the defendants and their 'men' had attempted to trespass into the property and therefore, a perpetual injunction was sought against them; whereas the persons now sought to be impleaded would very well come within that definition of 'men' because they are the persons who continued to put up the challenge to the plaintiffs' right to use of the disputed pathway at the time of filing of the plaint. The plaintiffs had only impleaded two persons, namely Padmakaran and Velayudhan. But any other person in the family, who is the relative of the defendants and attempts to OP(C) 1736/2017 -7- accomplish the desire of trespassing into the property of the plaintiffs, would very well come within the definition of a legal representative, even though they may not be legal heirs as defined under Section 3(1) of the Hindu Succession Act. The learned counsel would rely on the decision of the Apex Court in Jaladi Suguna (died) through L.Rs. v. Satya Sai Central Trust & Ors. (AIR 2008 (SC) 2866) in support of his argument, in which it is stated thus: “Determination as to who is the legal representative under Order 22 Rule 5 will of course be for the limited purpose of representation of the estate of the deceased for adjudication in that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject matter of the suit, vis-a-vis other rival claimants to the estate of the deceased.” 9. The argument of the learned counsel for the respondents herein is acceptable. But the impugned order at Ext.P9 does not arrive at a conclusion as to whether the parties sought to be impleaded are the legal representatives of the deceased or not. The adjudication of that has been deferred by the learned Additional District Judge, which is not proper on a plain reading of Order XXII Rule 5 CPC referred to OP(C) 1736/2017 -8- above. The proviso thereto also states that in case if an adjudication is necessary, it can even be sent to the trial court to be remitted back after a finding is arrived at by the trial court. But, it was not proper for the learned Additional District Judge to have relegated the matter to a later stage. That apart, the learned Additional District Judge has not stated anything about the condonation of delay or setting aside the abatement, which also should have been determined by the learned Additional District Judge. Hence, a cryptic order like Ext.P9 cannot be sustained. The order is hence, set aside and the files are sent back to the Additional District Court, Mavelikkara for deciding the application for impleading afresh, together with the applications for condonation of delay and setting aside abatement, keeping in mind, the scope of Order XXII Rule 5 CPC. The Original Petition is disposed of as above. No order as to costs. Sd/ASHOK MENON JUDGE jg