Karthu @ Karthiyani v. Sarojini and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 WP(C).No. 27164 of 2009(O) -------------------------CMA.114/2006 of II ADDL.DISTRICT COURT , ERNAKULAM IA NO.6238/2006 IN OS.55/2006 of PRINCIPAL MUNSIFF COURT, ERNAKULAM .................... PETITIONER(S): --------------- KARTHU @ KARTHIYANI, W/O.LATE RAGHAVAN, NEDUKULANGARA MALA, KUSUMAGIRI, KAKKANAD - 682 030. BY ADV. SRI.A.K.CHINNAN SMT.SUSAL A. CHINNAN RESPONDENT(S): - --------------- 1. SAROJINI, W/O.LATE BHASKARAN, KATTITHARA HOUSE, CHITTOOR ROAD, KORUMKOTTA, VADUTHALA - 682 023. 2. THANKAMMA, W/O.MADHAVAN, VALAVUSTHADATHIL NEDUMKULANGARA MALA, ATHANI, KAKKANAD - 682 030. 3. OMANAMMA, D/O.LATE KOUSALYA & KUMARAN (DRIVER), PEDIYAPARAMBIL, ALUVA. 4. SREEMATHI, D/O.LATE KOUSALYA & KUMARAN (DRIVER), PEDIYAPARAMBIL, ALUVA. 5. LAILA, D/O.LATE KOUSALYA & KUMARAN (DRIVER), PEDIYAPARAMBIL, ALUVA. 6. REMESAN, S/O.LATE KOUSALYA & KUMARAN (DRIVER), PEDIYAPARAMBIL, ALUVA. ADV. SRI.PAUL K.VARGHESE FOR R1 &2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.27164/2009 ## APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE APPLICATION IA NO.6019/06 AND AFFIDAVIT DATED 13.7.2006 EXT.P2 TRUE COPY OF THE JUDGMENT DATED 15.7.2006 IN OS NO.55/2006 OF THE PRINCIPAL MUNSIFF, ERNAKULAM EXT.P3 TRUE COPY OF THE AFFIDAVIT AND PETITION DATED 19.7.2006 IN IA NO.6238/2006 EXT.P4 TRUE COPY OF THE ORDER DATED 17.11.2006 IN IA NO.6238/2006 EXT.P5 TRUE COPY OF THE APPEAL MEMO DATED 23.11.2006 FILED BEFORE THE DISTRICT COURT, ERNAKULAM EXT.P6 TRUE COPY OF THE JUDGMENT IN WP(C) NO.21251 OF 2007 DATED 11.6.2008 EXT.P7 TRUE COPY OF THE APPELLATE JUDGMENT DATED 11.8.2009 IN CMA NO.114/2006 //TRUE COPY// ## **THOMAS P. JOSEPH, J.** ## **-------------------------------------W.P.(C) No.27164 of 2009 -------------------------------------Dated this the 8[th] day of September, 2010.** ## **JUDGMENT** This Writ Petition is in challenge of Ext.P7, judgment rendered by learned Additional District Judge-II, Ernakulam in C.M.A.No.114 of 2006 arising from the order passed by learned Munsiff, Ernakulam on I.A.No.6238 of 2006 in O.S.No.55 of 2006. This case has a chequered career before it came to this Court. 2. Respondent Nos.1 and 2 along with deceased plaintiff No.1 instituted the suit for a declaration that petitioner/defendant is not the legally wedded wife of the late Raghavan Nair, their brother and hence is not entitled to inherit the estate left behind the said Raghavan Nair. They also prayed for a decree for prohibitory injunction against petitioner. The suit was listed for trial on 15.7.2006. Respondent Nos.1 and 2, plaintiff No.1 and their counsel were present in court but they were not prepared to proceed with the trial of suit. Learned Munsiff dismissed the suit the same day observing that respondent Nos.1 and 2 and deceased plaintiff No.1 were not co-operating for further progress of the suit. Respondent Nos.1 and 2 and deceased plaintiff No.1 filed Ext.P3, I.A.No.6238 of 2006 for restoration of the suit as if the suit was dismissed for default. Plaintiff No.1 expired on 10.11.2006 which was not brought to the notice of learned Munsiff. Learned Munsiff dismissed Ext.P3, **W.P.(C) No.27164/2009** 2 I.A.No.6238 of 2006 on 17.11.2006 as per Ext.P4, order without noting the death of plaintiff No.1. Ext.P4, order dismissing I.A.No.6238 of 2006 was taken up in appeal by respondent Nos.1 and 2/plaintiff Nos.2 and 3 in C.M.A.No.114 of 2006. Deceased plaintiff No.1 was arrayed as respondent No.2 in the C.M.Appeal. Respondent Nos.1 and 2 filed I.A.No.3916 of 2006 in the appeal to implead legal representatives of deceased plaintiff No.1. Learned Additional District Judge disposed of C.M.A.No.114 of 2006 directing learned Munsiff to dispose of I.A.No.3916 of 2006. That judgment was challenged by petitioner in this Court in W.P.(C) No.21251 of 2007. It was argued before this Court that the C.M.Appeal is a nullity as it is preferred against Ext.P4, order which is non-est in the eye of law since that order was passed with deceased plaintiff No.1 on record. This Court disposed of W.P.(C) No.21251 of 2007 by Ext.P6, judgment. Decision in C.M.A.No.114 of 2006 was set aside and learned Additional District Judge was directed to ascertain whether death of plaintiff No.1 was before or after arguments were heard on Ext.P3, application (I.A.No.6238 of 2006) (obviously because this Court wanted to ascertain whether Rule 6 of Order XXII of the Code of Civil Procedure applied). After remand learned Additional District Judge considered the C.M.Appeal. Learned Additional District Judge allowed I.A.No.3916 of 2006 and impleaded legal representatives of deceased plaintiff No.1 in the C.M.Appeal. Learned Additional District Judge came to the conclusion that on account of death of plaintiff No.1 on 10.11.2006 Ext.P4, order dismissing I.A.No.6238 of 2006 was a nullity. But learned Additional District Judge proceeded to set aside the order on I.A.No.6238 of 2006 and remitted that application to the court of learned Munsiff for fresh decision. It is pointed out **W.P.(C) No.27164/2009** 3 by learned counsel for petitioner/defendant that procedure adopted by learned Additional District Judge is illegal and erroneous since the C.M.Appeal was a nullity and non-est in the eye of law for the reason that Ext.P4, order dated 17.11.2006 on Ext.P3 (I.A.No.6238 of 2006) is a nullity since that order was passed with deceased plaintiff No.1 on record and without impleading her legal representatives. According to the learned counsel the claim made by respondent Nos.1 and 2 and deceased plaintiff No.1 being the same, the suit and I.A.No.6238 of 2006 stood abated. In such a situation, learned Additional District Judge could not have allowed C.M.A.No.114 of 2006 even by way of remand. Nor could learned Additional District Judge allow I.A.No.3916 of 2006 filed in an appeal. Reliance is placed on the decisions in **State of Punjab v. Nathu Ram (AIR 1962 SC 89), Ram Sarup v. Munshi and others (AIR 1963 SC 553), Rameshwar Prasad and others v. Shambehari Lal Jagannath and another (AIR 1963 SC 1901)** and **Amba Bai and others v. Gopal and others (AIR 2001 SC 2003)** . In response it is contended by learned counsel for respondents that pursuant to Ext.P7, judgment, learned Munsiff has allowed I.A.No.6238 of 2006 on 30.06.2010 on condition of payment of cost of Rs.2,000/- which has been received by the petitioner. Learned counsel for petitioner stated that the amount was received under protest. 3. Point for decision is whether C.M.A.No.114 of 2006 is a nullity and learned Additional District Judge could have passed Ext.P7, judgment or allowed I.A.No.3916 of 2006. The decisions relied on by learned **W.P.(C) No.27164/2009** 4 counsel state, and that position cannot also be disputed that when more than one person have joint interest in the suit and one of them died the suit (or appeal) as the case may be abated unless the legal representatives of the deceased party are brought on record within the prescribed time. But those decisions related to abatement of suit or appeal as the case may be. A suit or appeal can abate only when it is pending. In the present case plaintiff No.1 expired on 10.11.2006 after the suit was dismissed on 15.07.2006. Only Ext.P3, application for restoration of the suit was pending when plaintiff No.1 died. In such a situation no question of abatement of suit arose as held in ## **Syed Balal Ahsan v. Wastana Rubi and others (AIR 1979 Patna** **319)** . What was required was to implead the legal representatives of deceased plaintiff No.1 in Ext.P3, application within a reasonable time. 4. It is pointed out that Ext.P3, application was heard and disposed of the same day (17.11.2006) while death of plaintiff No.1 was on 10.11.2006. Ext.P4, order was passed with a deceased party on record. Hence Ext.P4, order is a nullity and non-est in the eye of law. It follows that the C.M.Appeal preferred against Ext.P4, order is also a nullity. In that situation learned Additional District Judge could not have passed Ext.P7, judgment remanding the matter to the learned Munsiff for fresh decision or allowed I.A.No.3916 of 2006. Ext.P7, judgment and the decision on I.A.No.3916 of 2006 cannot stand. 5. It is contended by learned counsel for petitioner that since the suit was dismissed, remedy of respondent Nos.1 and 2 was not to prefer an **W.P.(C) No.27164/2009** 5 application for restoration under Order IX Rule 9 of the Code of Civil Procedure (for short, “the Code”) but, to prefer an appeal. That contention I am unable to give assent to. Though deceased plaintiff No.1, respondent Nos.1 and 2 and their counsel were present in court at the time the suit came up for hearing on 15.07.2006 they were not prepared to take part in the trial of the suit. Such presence cannot be treated as 'presence' in the eye of law (See **Divarakara Panicker v. Pathumma and others - 1990 (1) KLJ 787)** . Nor is it shown that it was on the request of respondent Nos.1 and 2 and deceased plaintiff No.1 that the case was posted for trial in the list on 15.07.2006. In the circumstances dismissal of the suit as per Ext.P2, judgment is not one under Order XVII Rule 3 of the Code as held in **Balakrishna Pillai v. Balakrishnan Nair (1988 (1) KLJ 263)** . The dismissal was under Order XVII Rule 2 of the Code in which case remedy available to respondent Nos.1 and 2 and deceased plaintiff was under Rule 9 of Order IX of the Code. Hence the contention that I.A.No.6238 of 2006 was not maintainable cannot be accepted. 6. As learned counsel for respondent pointed out, pursuant to Ext.P7, judgment learned Munsiff allowed I.A.No.6238 of 2006 on terms of cost. I am afraid, that disposal also cannot stand since it is pursuant to Ext.P7, judgment which is not in accordance with law and pronounced in an appeal which was non-est in the eye of law. Moreover it is pursuant to the impleadment of legal representatives of deceased plaintiff No.1 by the learned Additional District Judge vide order on I.A.No.3916 of 2006 (in C.M.A.No.114 of 2006) that **W.P.(C) No.27164/2009** 6 learned Munsiff allowed I.A.No.6238 of 2006 on 30.06.2010. Hence the subsequent disposal of Ext.P3, application also cannot stand. 7. Then the next question is whether respondent Nos.1 and 2 must be allowed to proceed with I.A.No.3916 of 2006. No doubt, that application was filed in C.M.A.No.114 of 2006 which I found is non-est. But, that does not mean that the application cannot survive. It was open to the learned Additional District Judge to transmit I.A.No.3916 of 2006 to the court of learned Munsiff for decision. Doing so cannot be said to be an exercise of jurisdiction in the C.M.Appeal. On the facts and circumstances of the case I am persuaded to transmit I.A.No.3916 of 2006 to the court of learned Munsiff for decision. 8. In the light of what I have stated Ext.P7, judgment, order on I.A.No.3916 of 2006 and consequently the decision entered by the learned Munsiff on I.A.No.6238 of 2006 on 30.06.2010 cannot stand and, the same are to be set aside. Resultantly, this Writ Petition is allowed in the following lines: i. Ext.P7, judgment in C.M.A.No.114 of 2006 is set aside and, that appeal is found to be non-est. ii. Order (dated 10.08.2009) passed by learned Additional District Judge on I.A.No.3916 of 2006 (in C.M.A.No.114 of 2006) is set aside. iii. In consequence of the above, order passed by the learned Munsiff on I.A.No.6238 of 2006 on 30.06.2010 would stand set aside. iv. I.A.No.6238 of 2006 (in O.S.No.55 of 2006 of the court of learned Munsiff) and I.A.No.3916 of 2006 (in C.M.A.No.114 of 2006 of the court of learned Additional District Judge) are transmitted to the court of learned **W.P.(C) No.27164/2009** 7 Munsiff for appropriate decision. Learned Munsiff may re-number I.A.No.3916 of 2006. v. Learned Munsiff is directed to dispose of I.A.No.3916 of 2006 (re-numbered in that court) and I.A.No.6238 of 2006 as provided under law. vi. In the light of the above, further proceedings in O.S.No.55 of 2006 of the court of learned Munsiff, Ernakulam will stand in abeyance awaiting decision on I.A.Nos.3916 of 2006 and 6238 of 2006. **THOMAS P.JOSEPH, Judge.** ## **cks**