P. M. Sadanathan v. Thara Rejimon and Others (WP(C) No. 7346 of 2013)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU TUESDAY, THE 11TH DAY OF APRIL 2017/21ST CHAITHRA, 1939 WP(C).No. 7346 of 2013 (P) --------------------------- PETITIONER(S): - ------------------ P.M.SADANANTHAN, PROPRIETOR, ASWAS FINANCIERS MUHAMMA P.O., CHERTHALA ALAPPUZHA BY ADVS.SRI.JOSE JOSEPH SRI.AJAY V.ANAND RESPONDENT(S): ------------------- ## 1. THARA REJIMON, PUTHUPARAMBIL HOUSE, MUHAMMA P.O., CHERTHALA 688 525 ## 2. AMRITHANANDHINI, PUTHUPPARAMBIL HOUSE, MUHAMMA P.O., CHERTHALA, REPRESENTED BY THE MOTHER AND GUARDIAN THARA REJIMON 688 525 ## 3. AMRITHASANKAR PUTHUPPARAMBIL HOUSE MUHAMMA P.O., CHERTHALA REPRESENTED BY THE MOTHER AND GUARDIAN THARA REJIMON 688 525. 4. THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA, REPRESENTED BY ITS SENIOR SUPERINTENDENT 688 001. 5. THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU TRIVANDRUM, REPRESENTED BY ITS REGISTRAR, PIN: 695 001 R BY SMT. A.C. VIDHYA, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 7346 of 2013 (P) -------------------------------- : 2 : ## **APPENDIX** PETITIONER(S)' EXHIBITS: ------------------------------ EXT.P1 TRUE COPY OF ORDER OF THE 4TH RESPONDENT IN C.C NO 140/10 DATED 29-11-2010 EXT.P2TRUE COPY OF APPEAL BEFORE THE 5TH RESPONDENT DATED 02.01.2012. EXT.P3 TRUE COPY OF AFFIDAVIT WITH PETITION FOR IMPLEADING THE LEGAL HEIRS OF DECEASED RESPONDENT IN THE APPEAL DATED 28-09-2012 EXT.P4 TRUE COPY OF AFFIDAVIT FILED BY ADVOCATE FOR THE RESPONDENT IN THE APPEAL DATED 10-12-2012 EXT.P5 TRUE COPY OF JUDGMENT OF THE 5TH RESPONDENT IN APPEAL NO 43/2012 DATED 10-12-2012 RESPONDENT(S)' EXHIBITS: NIL -------------------------------- ## True Copy/ P.A to Judge. rv ## **DAMA SESHADRI NAIDU, J. ------------------------------------------W.P. (C) No. 7346 of 2013 (P) -----------------------------------------Dated this the 11[th ] day of April 2017.** ## **JUDGMENT** The petitioner is a financier. In 2007, the first respondent's husband and the 2[nd] and 3[rd] respondents' father, now no more, availed himself of two loans by pledging gold ornaments as security. Later, a dispute arose about what should be the rate of interest the financier should charge. Eventually, the matter led to a consumer dispute before the Consumer Disputes Redressal Forum, Alappuzha. 2. The learned Consumer Forum, through Ext.P1 Order dated 06.07.2010, in C.C. No. 140 of 2010, directed the financier to charge interest at 12% and to release the gold ornaments on the borrower's paying the loan amount along with interest. Aggrieved, the financier filed appeal No. 43/2011 before the Kerala State Consumer Disputes Redressal Commission, Trivandrum (“the Commission”). 3. As seen from the record, pending the appeal, the borrower died. The financier, as an appellant, filed the Ext.P3 impleadment petition proposing to bring on record the borrower’s legal heirs— W.P.(C.) No. 7346/2013 -2- respondents 1 to 3. In fact, the financier filed the impleadment petition because of the information supplied by the borrower’s counsel through Ext.P4 that the borrower died on 03.09.2012. 4. When the interlocutory application for impleadment was taken up, the Commission passed Ext.P5 judgment: dismissed the appeal. Aggrieved, the financier is before this Court. 5. Heard the learned counsel for the petitioner and the learned Government Pleader, besides perusing the record. 6. To appreciate the correctness of the impugned judgment, we may extract it in its entirety: “Appellant/Opposite Party is called absent. Respondent/ Complainant represented by the Counsel and filed an affidavit that the Respondent/Complainant who died. In the circumstances the appeal is dismissed. The legal heirs of the complainant is not seeing any interest in this matter. This appeal is dismissed.” 7. The dispute concerns property, be it money or gold, capable of getting passed on to the descendants once the possessor dies. The financier has a grievance that the Consumer Forum’s Order affects his interests adversely. So, he filed a statutory appeal. Once a party to a dispute of this nature dies, still the cause of action survives. So the W.P.(C.) No. 7346/2013 -3- financier, as the appellant, wanted to bring on record the borrower's legal heirs. And he did file an application. But, the Commission, for the reasons not discernible from Ext.P5 judgment, dismissed the appeal. 8. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. Carefully read, the provisions in Order 22 CPC and the later amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed if their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. (See Sardar Amarjit Singh Kalra v. Pramod Gupta.)[1] > 1 (2003) 3 SCC 272 (para 26) W.P.(C.) No. 7346/2013 -4- 9. Suffice it to observe that the judicial proceedings—original or appellate—do not survive the death of a party to the proceedings only if the right asserted or an obligation insisted upon is personal—so personal that it is incapable of getting passed on as an asset or as a liability to the successors. In other words, on the death of any person, all causes of action subsisting against or vested in him will survive against, or, as the case may be, for the benefit of, his estate. 10. The early common law rule that actio personalis moritur cum persona—a personal action dies with the person—applies only under limited circumstances. But a right that is purely personal dies with the person who asserts that right. 11. C. K. Thakker, in his treatise Code of Civil Procedure[2] , observes thus: Generally all rights of action and all demands whatsoever, existing in favour of or against a person at the time of his death, survive to or against his representatives. But in cases of personal actions, i.e., action where the relief sought is personal to the deceased or the rights intimately connected with the individuality of the deceased, the right to sue will not survive to or against his > 2 EBC, Vol 5, pp.4 and 5 W.P.(C.) No. 7346/2013 -5- representatives. Illustration (b) to Section 37 of the Contract Act, 1872, exemplifies this. So is Section 306 of the Succession Act, 1925. 12. For a precedential illustration, we need not look far: In Raju v. Chacko[3] , this Court has held that a claim for compensation for defamation under the civil law may not be maintainable regarding defamation of a deceased person. It is on the principle that a personal right of action dies with the person. But, still, the lawmakers felt that defamation of a deceased person can legitimately give rise to a criminal prosecution for the offence of defamation against a deceased person. 13. Here, the dispute is about the rate of interest to be charged; the deceased received the services. He has a judgment in his favour. The opposite party is burdened with an obligation—an obligation that affects his estate. Then, the death of one party cannot, I reckon, put paid to the legal proceedings. Nor does it obliterate the judgment or order already passed. In other words, the jural relationship of the parties only stands modified to the extent that the estate of the deceased will be represented by his heirs or successors. > 3 2005(4) KLT 197 W.P.(C.) No. 7346/2013 -6- 14. Under these circumstances, I reckon that Ext.P5 order is unsustainable. I, therefore, set aside Ext.P5 and remand the matter to the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram, to have the appeal No. 43/2012 restored to file and to consider the appellant's application for impleadment, on merits. In the manner stated above, this writ petition is allowed. No order on costs. sd/- **DAMA SESHADRI NAIDU, JUDGE.** Rv W.P.(C.) No. 7346/2013 -7-