Karthu @ Karthiyani v. Sarojini, Thankamma, Omana Amma, Sreenath, Laila, Remesan

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932** ## **RP.No. 1012 of 2010(O)** **---------------------------------** **[AGAINST THE JUDGEMENT IN W.P.(C).NO.27164/2009 DATED 08/09/2010, O.S. NO.55/2006 OF THE MUNSIFF'S COURT, ERNAKULAM]** **....................** ## **PETITIONER/PETITIONER:** **--------------------------------------** **KARTHU @ KARTHIYANI, W/O.LATE RAGHAVAN,S/O.KANDAN, NEDUMKULANGARA MALA,KUSUMAGIRI, PIN-682 030.** **BY ADV. SRI.A.K.CHINNAN.** ## **RESPONDENTS/RESPONDENTS:** **-----------------------------------------------** **1. SAROJINI,W/O.LATE BHASKARAN, KATHITHARA HOUSE,KURUMKOTTA,VADUTHALA-682 023.** **2. THANKAMMA,W/O.MADHAVAN, VALAVUTHADTHIL,NEDUMKULANGARA MALA, POST KAKKANAD,PIN-682 030.** ## **3. OMANA AMMA,** **D/O.KUMARAN(DRIVER), PEDIYAPARAMBIL,ALUVA – 683 101.** ## **4. SREENATH,** - **S/O.LATE KUMARAN, PEDIYAPARAMBIL,POST ALUVA- 683 101.** ## **5. LAILA,** **D/O.KUMARAN, DRIVER, PEDIYAPARAMBIL,POST ALUVA – 683 101.** **6. REMESAN, S/O.LATE KUMARAN, PEDIYAPARAMBIL, POST ALUVA – 683 101.** **BY** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 22/02/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **prv.** ## **THOMAS P JOSEPH, J.** ## **----------------------------------------** ## **R.P.No.1012 of 2010** ## **---------------------------------------** ## **Dated this 22[nd] day of February, 2011** ## **ORDER** Petitioner in the writ petition, defendant in O.S.No.55 of 2006 seeks review of judgment dated September 8, 2010 on three grounds, viz, this Court, without bearing in mind the limited jurisdiction exercisable under Article 227 of the Constitution has granted relief in favour of respondents who did not seek any relief, that when this Court found that C.M.Appeal.No.114 of 2006 was a nullity it was not correct to say that the application filed in that appeal was maintainable and, thirdly this Court has misapplied the decision of the Patna High Court in **Syed Balal Ahsan vs. Wastana Rubi and Ors. (AIR 1979 Patna 319)** . I have heard learned counsel for petitioner and the respondents. 2. Dispute arose in a suit for declaration that petitioner is not the legally wedded wife entitled to inherit the estate of deceased Raghavan Nair. The suit was posted for trial in the list on 15.07.2006. That day the suit was dismissed for default. Plaintiffs in the suit filed I.A.No.6238 of 2006 for restoration of the suit. That application was opposed by petitioner/defendant. R.P.No.1012 of 2010 -: 2 :- That application was dismissed on 17.11.2006. But it happened that even before disposal of that application on 17.11.2006, the first plaintiff had expired on 10.11.2006. It is without noticing that the trial court disposed of I.A.No.6238 of 2006 on merit. Plaintiff Nos.2 and 3 challenged the dismissal of I.A.No.6238 of 2006 in C.M.A.No.114 of 2006 and in that appeal plaintiff Nos.2 and 3/respondent Nos.1 and 2 filed I.A.No.3916 of 2006 to implead legal representatives of deceased first plaintiff. The C.M.Appeal was allowed without disposing of I.A.No.3916 of 2006. That judgment was challenged in W.P(C).No.21251 of 2007. This Court set aside the judgment in C.M.A.No.114 of 2006 and remitted the matter to the appellate court to ascertain whether death of first plaintiff took place before or after hearing on I.A.No.6238 of 2006 was concluded obviously, in view of the fact that if the death was after hearing concluded death of first plaintiff was inconsequential so far as I.A.No.6238 of 2006 is concerned. Appellate court disposed of C.M.A.No.114 of 2006 by allowing I.A.Nos.3916 of 2006 and 6238 of 2006. That judgment was challenged in this Court in W.P(C).No.27164 of 2009 which this Court disposed of by judgment dated September 8, 2010 which is sought to be reviewed on the grounds above stated. R.P.No.1012 of 2010 -: 3 :- 3. So far as the first ground that relief is granted beyond the scope of Article 227 of the Constitution is concerned, it is true that the High Court exercising its power under Article 227 of the Constitution is not required to correct any and every error of fact but, it is the power conferred on the High Court to ensure that the subordinate Civil Courts acted within their bounds and did not exceed the power conferred on it. The power is conferred to correct if an illegality is committed by the subordinate Civil Court. Here, it is not disputed that the first plaintiff died on 10.11.2006 and that I.A.No.6238 of 2006 for restoration (with the first plaintiff also on the party array) was heard and disposed of on 17.11.2006. In other words, hearing of I.A.No.6238 of 2006 and its disposal was admittedly after the death of first plaintiff on 10.11.2006. It therefore left me in no doubt that the appellate court while allowing C.M.A.No.114 of 2006 clearly committed an error of law in allowing I.A.Nos.3916 of 2006 and 6238 of 2006 for the reason that the appeal itself was a nullity arising from an order which by itself was null and void. In such a circumstance, it is well within the power of this Court under Article 227 of the Constitution to correct the patent illegality committed by the lower Civil Court. That is what this Court while disposing of W.P R.P.No.1012 of 2010 -: 4 :- (C).No.27164 of 2009 has done. It is not a case that any relief was granted in favour of respondents such as allowing any of the applications preferred by them, instead, directions were issued to the trial court as to how it should dispose of I.A.Nos.6238 and 3916 of 2006 (the latter was filed in C.M.A.No.114 of 2006). I do not find anything illegal in exercising the power under Article 227 of the Constitution requiring review of the judgment on that ground. 4. The second point raised requires consideration. This Court found that the C.M.Appeal itself was not maintainable since it was preferred against an order on I.A.No.6238 of 2006 which is null and void for the reason that the said order was passed with the deceased first plaintiff on record. In that view of the matter C.M appeal itself was not maintainable. This Court directed that I.A.No.3916 of 2006 filed in C.M.A.No.114 of 2006 be remitted to the trial court for disposal where the trial court shall assign a new number to that application (obviously bearing in mind that such an application could not have been filed in C.M.A.No.114 of 2006). It is true that such an application could not have been maintained in C.M.A.No.114 of 2006. That exactly is the reason why this Court directed trial court to re-number R.P.No.1012 of 2010 -: 5 :- I.A.No.3916 of 2006. What is required is only to make it clear that the said application shall be deemed to have been filed in the trial court on the day records were received from the appellate court (in C.M.A.No.114 of 2006). This view of mine gets support from the decisions in **Kannangara Ismail and Ors. Vs. Palayat Kappadakkal Pavu Amma and Ors. (AIR 1955 Madras 644)** and **Khaja Begum Vs. Gulam Mohiuddin and Ors. (AIR 1976** **Andhra Pradesh 65).** Where the suit is filed against a sole defendant who was dead even before institution of the suit and hence the suit is a nullity and an application is preferred by the plaintiff to implead legal representatives of the deceased defendant, the suit can be treated as one filed on the date on which the application for impleadment was filed provided on that date cause of action for the suit was within the period of limitation. That principle can be applied to the facts of this case as well. Hence the trial court is directed to treat I.A.No.3916 of 2006 (filed in C.M.A.No.114 of 2006) as filed in that Court on the date on which the records of the case were received in C.M.A.No.114 of 2006. Other directions in the matter of assigning a new number for the said application and its disposal would remain. R.P.No.1012 of 2010 -: 6 :- 5. The last contention is regarding misapplication of the decision of the Patna High Court in **Syed Balal Ahsan vs. Wastana Rubi and Ors.(supra)** . Learned counsel for petitioner contends that the suit in that case was pending and death occurred after the decree was passed. The principle laid down in that decision is that question of abatement arose only when the suit was pending. It is that principle that was accepted by this Court while disposing of the writ petition. Question of abatement arises only when the suit is pending and if it had already been dismissed for default and death occurred thereafter, no question for abatement of the suit arose. True, when an application for restoration and impleadment are filed after considerable length of time, it is obligatory on the part of petitioner to explain the delay but not on the ground of limitation. The contention that decision of the Patna High Court has been misapplied not only does not apply to the factual situation but also is not a ground for review. Even if the contention is correct that may be a ground to challenge judgment in the appropriate forum but not a ground for review. Resultantly this petition is disposed of directing the trial court to treat I.A.No.3916 of 2006 (in C.M.A.No.114 of 2006) as R.P.No.1012 of 2010 -: 7 :- having been filed in the trial court on the day records of the case were received from C.M.A.No.114 of 2006 in that Court. Other directions in the judgment in W.P(C).No.27164 of 2009 would remain in force. Needless to say that petitioner will have the right and opportunity to oppose the applications preferred by respondent Nos.1 and 2 on appropriate grounds as are available to him. **(THOMAS P JOSEPH, JUDGE)** Sbna/-