Patharammell Seenath and T.K. Abdul Gafoor v. T.C. Soudhamini and T.C. Chandramathi

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 RP.No. 369 of 2011() -------------------AGAINST THE JUDGEMENT/ORDER IN SA.977/2000 .................... ## REVIEW PETITIONER(S): RESPONDENTS ## 1. PATHARAMMEL SEENATH,AGED 53 YEARS, - "BISMILLA MANZIL",NEAR SREEKRISHNA BHAJAN SAMITHI, ## 2. T.K.ABDUL GAFOOR,63 YEARS, - "BISMILLA MANZIL",NEAR SREEKRISHNA BHAJAN SAMATHI, BY ADV. SRI.PHILIP M.VARUGHESE RESPONDENT(S): APPELLANTS 1. T.C.SOUDHAMINI,KALATHIL HOUSE, AZHIYUR AMSOM,DESOM,VADAKARA TALUK. 2. T.C.CHANDRAMATHI,(DIED),"KRISHNA", AZHIYUR AMSOM,DESOM,VADAKARA TALUK. BY ADV. SRI.. B. KRISHNAN SRI. K. PARTHASARATHY. THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 17/08/2011, THE COURT ON THE SAME DAY PASSED THE ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - R.P. No. 369 of 2011 in S.A. No. 977 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of August, 2011. ## **ORDER** This is a petition filed under Order 47 Rule 1 of the Code of Civil Procedure to have the judgment dated 2.2.2011 in S.A. 977 of 2000 reviewed. 2. The ground urged is that the name of the counsel who had been engaged by the review petitioners did not appear in the cause list and it is also pointed out that the second appellant, who was the second plaintiff before the trial court died on 24.9.2010 during the pendency of the appeal before this court. It is therefore pointed out that since the legal representatives are not brought on the party array, the appeal has abated and therefore the matter has to be reheard. 3. Learned counsel appearing for the respondents opposed the petition on the ground that even assuming that the second appellant was no more, R.P.369/2011. 2 the second appeal does not abate. The judgment of this court survives as far as the first appellant is concerned. In support of his contention, learned counsel relied on the decisions reported in **Sardar Amarjit Singh Kalra v. Pramod Guta** ((2003) 3 SCC 272), **Rameshwar Prasad v. Shambehabi Lal** (AIR 1963 SC 1901) and **Ayyappan v. Fr.Thomas** (1989(2) K.L.T. SN 26 Case No.32). 4. The claim of the respondents in this review petition that the appeal does not abate as a whole cannot be countenanced. On going through the records it is seen that what was claimed was a joint right and that was agitated by the appellants on their own behalf and on behalf of all the others who had similar interest over the property. In fact, it is seen that the respondents, who are the plaintiffs in the suit, had claimed that plot No.7 in Ext.C3 plan was allotted to the plaintiffs and others and they are in joint possession. 5. It was on the above pleadings that this court had occasion to pass the judgment dated 2.2.2011 whereby R.P.369/2011. 3 this court allowed the appeal and remanded the matter to the trial court. 6. The decision reported in **Sardar Amarjit Singh Kalra's case** (supra) was a case where several claimants in a land acquisition proceedings jointly filed a petition before the court concerned and it was held that death of one of the claimants will not have impact on the claim of the other claimants. It needs to be noticed that in the said case the claim of each of the claimants was independent and distinct and there was nothing in common except that they are all sought enhancement of compensation. It was in that context, it was held that the proceedings should continue by the other claimants even though one of the claimants is not there. It is significant to notice paragraph 34 of the judgment, which reads as follows: _“34......_ _(1) Wherever the plaintiffs or appellants or petitioners are found to have distinct, separate_ R.P.369/2011. 4 _and independent rights of their own and for the purpose of convenience or otherwise, joined together in a single litigation to vindicate their rights, the decree passed by the court thereon is to be viewed in substance as the combination of several decrees in favour of one or the other parties and not as a joint and inseverable decree. The same would be the position in the case of defendants or respondents having similar rights contesting the claims against them._ _(2) Whenever different and distinct claims of more than one are sought to be vindicated in one single proceedings, as the one now before us, under the Land Acquisition Act or in similar nature of proceedings and/or claims in assertion of individual rights of parties are clubbed, consolidated and dealt with together by the courts concerned and a single judgment or decree has been passed, it should be treated as a mere combination of several decrees in favour of or against one or more of the parties and not as joint and inseparable decrees._ _(3) The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or by joining_ 5 _together of more than one of such claimants of a particular nature, by itself would not be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one._ _(4) The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal as not being properly and duly constituted or rendered incompetent for being further proceeded with, requires to be determined only with reference to the fact as to whether the judgment/decree passed in the proceedings vis-a-vis the remaining parties would suffer the vice of contradictory or inconsistent decrees. For that reason, a decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other.”_ A reading of the above decision will clearly show that the same is not applicable to the facts of the case. R.P.369/2011. 6 ## 7. In the decision reported in **Rameshwar** ## **Prasad's case** (supra) it was held as follows: _“The provisions of O.41 R.4 do not override the provisions of O.2 R.9, Civil P.C. Such a question cannot arise. The two deal with different stages of the appeal and provide for different contingencies. Rule 4 of O.41 applies to the stage when an appeal is filed and empowers one of the plaintiffs or defendants to file an appeal against the entire decree in certain circumstances. He can take advantage of this provision, by he may not. Once an appeal has been filed by all the appellants the provisions of O.41 R.4 became unavailable. Order 22 operates during the pendency of an appeal and not at its institution. If some party dies during the pendency of the appeal, his legal representatives have to be brought on the record within the period of limitation. If that is not done, the appeal by the deceased appellant abates and does not proceed any further. There is thus no inconsistency between the provisions of R.9 of O.22 and those of R.4 of O.41 C.P.C. They operate at different stages and provide for different contingencies._ R.P.369/2011. 7 _There is nothing common in their provisions which make the provisions of one interfere in any way with those of the other.”_ 8. A reading of the above decisions shows that it can have no application to the case on hand. In the case on hand both the plaintiffs have jointly filed the appeal and each were agitating a common right in respect of the suit property. It was a proprietary right that was agitated and it was common to both of them. There is no question of application of Order 41 Rule 4 of the Code of Civil Procedure in the case on hand. 9. The decision reported in **Ayyappan's case** (supra) dealt with a case of joint tortfeasors. It is well settled that the liability of a joint tort feasor is independent and distinct and there is no necessity to implead all joint tortfeasors. The principle in that decision cannot have any application to the facts of this case. 10. As already noticed, in the case on hand it seems that a common right is being agitated by the R.P.369/2011. 8 appellants in respect of the same property which was allotted to them in a final decree in a partition suit jointly. In the light of these facts it is felt that this review petition is to be allowed. Accordingly this review petition is allowed, the judgment dated 2.2.2011 is recalled and the appeal is posted for rehearing. Further proceedings before the lower court shall stand stayed until further orders. **P. BHAVADASAN, JUDGE** sb.