Chekkunni v. Mammunni (deceased) and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930** ## **WP(C).No. 23932 of 2006(Y)** ## **---------------------------------------** **OS.583/1986 of MUNSIFF COURT, MANJERI** **....................** ## **PETITIONER:** - **------------------** **CHEKKUNNI, S/O.KUNHUMUHAMMED HAJI, POOTHRUKKOVU, PORUR AMSOM AND DESOM, MALAPPURAM DISTRICT.** **BY ADV. SRI.R.RAJESH KORMATH** ## **RESPONDENTS:** **----------------------** **1. MUHAMMED @ KUNHAN, S/O.MAMUNNI, KALIKAVU AMSOM, THRIKKANASSERI DESOM, MALAPPURAM DISTRICT.** **2. KADEEJA, W/O.MAMUNNI, KALLANMOOLA, P.O.MAMBATTUMMOOLA, NILAMBUR TALUK, MALAPPURAM DISTRICT.** **3. SAUDATH, D/O.MAMUNNI, VELLUVANPALI HOUSE, CHATHAMUNDA, P.O.PATHIRIPADAM, MALAPPURAM DISTRICT.** **4. FASLA, W/O.AKBAR M.P., MARIAPADATH HOUSE, SRAMBIKKALLE, P.O.PULINJODE, MALAPPURAM DISTRICT.** **5. ITHACHU @ KUNHUTTY, W/IO.KARIYIL MUHAMMED @ NANI, KARIYIL HOUSE, KALIKAVU AMSOM P.O., MALAPPURAM DISTRICT.** **6. AMINA, W/O.PULLUNNI KUTTIMMAN, PULLUNNI HOUSE, KALIKAVU AMSOM, MALAPPURAM DISTRICT.** **7. SAINA, W/O.MUHAMMED @ BAPPU, MADATHIL HOUSE, MARUTHANGAD, P.O.MOOLA, MALAPPURAM DISTRICT.** ## **W.P.(C).23932/2006-Y** **8. JAMEELA, W/O.URMAN, THUPPILAKKADAN HOUSE, THANNIKKADAVU, P.O.KUNNUMMEL POTTI, MALAPPURAM DISTRICT.** **9. AYTHRUNNI, KALIKAVU AMSOM, THRIKKANASSERI DESOM, MALAPPURAM DISTRICT.** **10. HAMZA, S/O.THADIYAR UNEELI, KALIKAVU AMSOM, THRIKKANASSERI DESOM, MALAPPURAM DISTRICT.** **11. AMINA, W/O.MUHAMMED, PULIYAKKODE, PORUR AMSOM AND DESOM, MALAPPURAM DISTRICT.** **12. FATHIMA, D/O.MUHAMMED, PULIYAKKODDE, PORUR AMSOM AND DESOM, MALAPPURAM DISTRICT.** **13. NEFEESA, D/O.MUHAMMED, PULIYAKKODE, PORUR AMSOM AND DESOM, MALAPPURAM DISTRICT.** **14. CHEKKUNNI, S/O.MUKRITHODI MAMMU, PULIYAKKODE, PORUR AMSOM AND DESOM, MALAPPURAM DISTRICT.** **15. ABDU, S/O.MUKRITHODI CHEKKUNNI, PULIYAKKODE, PORUR AMSOM AND DESOM, MALAPPURAM DISTRICT.** **16. KHALID, S/O.MUKRITHODI CHEKKUNNI, PULIYAKKODE, PORUR AMSOM AND DESOM, MALAPPURAM DISTRICT.** **17. UMMU, S/O.MUKRITHODI CHEKKUNNI, PULIYAKKODE, PORUR AMSOM & DESOM,MALAPPURAM DIST.** **(1ST RESPONDENT IN THE COURT BELOW, MAMMUNNI DIED ON 4/12/2005 AND HIS LEGAL REPRESENTATIVES ARE RESPONDENTS 1 TO 8 HEREIN)** **BY ADV. SRI.SHEJI P.ABRAHAM - R** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/07/2008, ALONG WITH FAO NO. 90 OF 2008 FAO NO. 91 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C).23932/2006-Y** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE AFFIDAVIT DATED 24/03/2004 ACCOMPANYING I.A. NO.889/2004, IN THE APPLICATION TO IMPLEAD THE LEGAL HEIRS OF THE DECEASED PLAINTIFF.** **EXT.P2: COPY OF THE AFFIDAVIT DATED 24/03/2004 ACCOMPANYING I.A. NO.887/2004 THE APPLICATION TO IMPLEAD THE PETITIONER HEREIN AS SECOND PLAINTIFF.** **EXT.P3: COPY OF THE AFFIDAVIT DATED 22/03/2004 ACCOMPANYING I.A. NO.884 OF 2004, THE APPLICATION TO CONDONE THE DELAY IN FILING THE APPLICATION TO IMPLEAD THE LEAGAL REPRESENTATIVES OF THE DECEASED PLAINTIFF.** **EXT.P4: CERTIFIED COPY OF THE COMMON ORDER DATED 11/08/2005 IN I.A. NO.889 OF 2004, I.A. NO.887 OF 2004, I.A. NO.884 OF 2004 AND THE OTHER APPLICATIONS.** ## **RESPONDENT'S EXHIBITS: NIL** ## **// TRUE COPY //** ## **Rs/** ## **M.N.KRISHNAN, J** ## **===================== W.P.(C) No.23932/2006 & FAO Nos.90 & 91/ 2008 =====================** ## **Dated this the 1[st] day of July 2008** ## **JUDGMENT** W.P.(C)No.23932 of 2006 is filed against the common order in I.A.Nos.884,887 & 889 of 2004. These I.As are filed to implead the legal representatives of deceased plaintiff with a petition to condone the delay and also to implead the writ petitioner as the supplemental 2[nd] plaintiff. 2. FAO No.90 of 2008 is preferred against the order in I.A.No.886 of 2004 in O.S.No.583 of 1986. F.A.O.No.91 of 2008 is preferred against the order in I.A.No.1077 of 2005 in O.S.No.583 of 1986. The suit originally filed was dismissed and ultimately this Court remanded the case for fresh disposal. The case was posted to 22.5.2003, then on 9.6.2003 and ultimately on 1.7.2003. As the legal representatives of the plaintiff did not come on record and prosecute the case, the suit was dismissed. 3. The question arises for determination in this case is one regarding the maintainability of a petition under Order XXII Rule 10 C.P.C and the other is regarding the applicability of Section 146 of the C.P.C. The prayer to implead the assignee under Order XXII Rule 10 C.P.C was negatived by WP(C)23932/2006 & con.cases -:2:- the court below on the basis that there was no suit pending and the provision under Order XXII Rule 10 cannot be invoked and therefore it is liable to be dismissed. This has been so held in the decision reported in Goutami Devi Sitamony v. Madhavan Sivaraman(1976 KLT 262(FB). Even otherwise a mere reading of the Section would make it clear that Order XXII Rule 10 applies only to cases where assignment before final order in suit. Here the suit has been dismissed on 1.7.2003 and these applications are moved only thereafter. Therefore, I cannot find fault with the court below for dismissing the prayer under Order XXII Rule 10 C.P.C. 4. Now the next question to be considered is regarding the applicability of Section 146 C.P.C. Section 146 deals with the proceedings by or against representatives. “Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceedings may be taken or the application may be made by or against any person claiming under him”. The applicability of Section 146 has been considered by a learned Judge of this Court in the decision reported in Joy v. Narayana Menon(1999(2)KLT 503). The Court held that when Order 22 Rule 10 does not apply then assignees are entitled to invoke Section 146 of the C.P.C to seek the leave of the High Court for filing the second appeal against the WP(C)23932/2006 & con.cases -:3:- decree of the lower appellate court. The learned Judge also referred to the decision of the Apex Court in Saila Bala v. Nirmala Sundari(AIR 1958 SC 394). Or, in other words, the principles underlined was that a person when he is not entitled to file an application under Order XXII Rule 10 C.P.C his remedies are not totally shut and he has got the right to invoke Section 146 to come on record. A case where an application for setting aside the ex parte decree was filed by an assignee with the aid of Section 146 of the C.P.C the Patna High Court considered the same in the decision reported in AIR (39) 1952 Patna 72. In that case the court held that the transferee was a person vitally interested in setting aside the ex parte decree and was entitled to file an appeal against the order dismissing the applications as he was affected by the order in question. Here, the assignment is admittedly during the pendency of the proceedings and it is not a transfer made after the disposal of the case. So there was a right for the present party even during the pendency of the suit and he was under the bona fide impression that the plaintiff will prosecute the case so as to enure to his benefit also. But the legal representatives did not take so much of interest in prosecuting the case. Whatever it may be, it is very clear by virtue of the assignment, the proposed person is entitled to prosecute the matter. Section 146 will come to his rescue and therefore even if the provisions quoted in the WP(C)23932/2006 & con.cases -:4:- applications are wrong, the court should have considered Section 146. Since the assignee wants to come on record and as the legal representatives cannot have any right over the property in the light of the assignment deed, I find that their junction is not necessary hereafter and the court can take into consideration the impleadment of assignee as a party to the proceedings. I make it clear that the court may consider liberally the application filed by the assignee for impleadment and thereafter pass appropriate orders in the restoration application. When the restoration application is allowed, it goes without saying that his further prayer to get himself impleaded in the suit has to be allowed automatically on filing an application. In the result, the writ petition and the FAOs are disposed of as follows: The application filed under Order XXII Rule 10 will stand dismissed. The petition to implead the assignee in the restoration application and the prayer to restore the suit dismissed for default is maintainable under Section 146 of the C.P.C and let it be considered sympathetically by the court below and after passing appropriate orders on the restoration application, permission be granted to the assignee to get himself impleaded as the supplemental 2[nd] plaintiff. There is no necessity to proceed further with the petitions to implead the legal representatives of the deceased original plaintiff as the assignee has chosen to come on record. If WP(C)23932/2006 & con.cases -:5:- necessary, the court may insist for an affidavit from the legal representatives of the plaintiff regarding their no objection in the assignee continuing the proceedings. ## **M.N.KRISHNAN, JUDGE** **Cdp/-**