Prasanna Kumar, Balannair, Rajmohan Nair v. Vasudevan Nair

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID FRIDAY, THE 5TH DAY OF APRIL 2013/15TH CHAITHRA 1935 FAO.No. 308 of 2011 ( ) ------------------------ AGAINST THE ORDER IN I.A.NOS.717/2007 AND 825/2007 IN AS.17/2000 of THE ADDL. DISTRICT COURT, PATHANAMTHITTA DATED 27-06-2011 APPELLANTS/PETITIONERS: ---------- 1. PRASANNA KUMAR,S/O.LATE KRISHNA KURUP, PRASAD BHAVANAM, KUMARAMPEROOR THEKKEKARA VADASSERIKARA, RANNY. 2. BALAN NAIR.P.P,S/O.LATE PARVATHIAMMA, PARATHANATHU HOUSE, KUMARAMPEROOR THEKKEKARA VADASSERIKARA, RANNY. 3. RAJMOHAN NAIR,S/O LATE PARVATHIAMMA, PARATHANATHU HOUSE, KUMARAMPEROOR THEKKEKARA VADASSERIKARA, RANNY. BY ADVS.SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX RESPONDENT/RESPONDENT: ---------- VASUDEVAN NAIR,S/O.RAMAN NAIR, KALLOTHU VEEDU, EDAKULAM MURI, VADASSERIKARA VILLAGE. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 05-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **HARUN-UL-RASHID,J.** ## **-------------------------** **F.A.O.NO.308 OF 2011 ------------------------DATED THIS THE 5TH DAY OF APRIL, 2013** ## **JUDGMENT** Legal heirs of defendants 1 and 2 in O.S.No.138/96 on the file of the Munsiff's Court, Ranny are the appellants. They are the petitioners in I.A. Nos.717/2007 and 825/2007 in A.S. No.17/2000 on the file of the Additional District Court, Pathanamthitta. The appeal is directed against the order dated 27/6/2011 in I.A.Nos.717/2007 and 825/2007 in A.S.No.17/2000. The court below found that the prayers for condonation of delay and setting aside the abatement and the consequent prayer for impleadment are not allowable and the petitions are liable to be dismissed. Aggrieved by the said order the legal heirs of defendants 1 and 2 preferred this appeal. The parties are hereinafter referred to as the petitioners and respondent as arrayed in the aforesaid I.As. 2. The sole respondent in the said IAs. as plaintiff filed **-2-** ## **F.A.O.No.308/2011** the suit for declaration of title and for permanent prohibitory injunction. The suit was decreed. Defendants filed A.S.No.17/2000 challenging the decree and judgment passed by the trial court in O.S.No.138/1996. The appeal was dismissed on merits on 31/7/2006 without noticing the death of defendants 1 and 2. Stating that they came to know about the passing of the decree and judgment in A.S.No.17/2000 the legal heirs of defendants 1 and 2 filed I.A.No.717/2007 praying to declare that the judgment and decree is a nullity and to implead them as legal heirs of appellants 1 and 2. I.A.No.825/2007 was also filed to set aside the abatement and condone the delay in setting aside the abatement. 3. The lst appellant in A.S.No.17/2000 died on 8/6/2002 and the 2nd appellant on 4/4/2002. The appeal was disposed on merits on 31/7/2006 without noticing the death of appellants 1 and 2. The decree and judgment was passed without impleading the legal representatives of deceased appellants 1 and 2. In these circumstances, the trial court examined the contentions of the legal **-3-** ## **F.A.O.No.308/2011** heirs of deceased appellants and found that the decree passed by the court below on 31/7/2006 is a nullity being passed against the dead persons. 4. The Lower Appellate Court thereafter examined I.A.Nos.717/3007 and 825/2007 on merits. The case of the petitioners is that they came to know about the disposal of the appeal only on 11/6/2007 when the Advocate for the appellants informed them over telephone that the judgment and decree had been obtained by him in the above appeal. The Lower Appellate Court observed that the Advocate of the appellants must have been intimated the factum of death of appellants 1 and 2 to the court below in view of the provisions contained under Order 22 Rule 10A C.P.C. The court further observed that in all probability the counsel may contact the parties before arguing the case on merits and that in that eventuality he may know the death of the appellants. These observations are made on the assumption that the lower Appellate Court might have got knowledge about the death **-4-** ## **F.A.O.No.308/2011** of appellants 1 and 2. The Lower Appellate Court also observed that no affidavit has been filed by the counsel concerned stating that he was not aware of the death of the parties. On the basis of the said reasons and relying on the judgment of the Apex Court, the court below held that there was no justification for not reporting the death of appellants 1 and 2 before the court below and arguing the case on merits in the absence of the appellants 1 and 2. 5. This is a case where the appellate court passed decree and judgment on merits. Admittedly, the case was decided without hearing the contentions of deceased appellants 1 and 2. Learned counsel, who were appearing for the appellants 1 and 2 before the court below, had filed an affidavit before this Court along with the memorandum of appeal. In the affidavit it is stated that the lst appellant was conducting the case on behalf of other parties also, all through out. It is also stated that even at the trial stage the lst appellant would come to the lawyer's office only when there is **-5-** ## **F.A.O.No.308/2011** some necessity, that too upon intimation. It is further stated that none of the appellants were visiting his office or enquiring about the progress of the matter. It is stated in paragraph 4 of the affidavit that the lawyer was under the impression that the parties were dejected following the adverse judgment and delay in disposing the appeal, as was the case usually with several litigants and that as he conducted the case at the trial stage and in view of the nature of contentions, there was no necessity for contacting the parties before final hearing. Therefore, he did not contact any of the appellants before the final hearing of A.S.No.17/2000. It is further stated that therefore, he was unaware of the death of appellants 1 and 2 all through out the pendency of the appeal and at the time of hearing. 6. The Lower Appellate Court held that the decree being passed by the court below against a dead person is a nullity. The only question that has to be considered is whether there is satisfactory explanation for condoning the delay in setting aside **-6-** ## **F.A.O.No.308/2011** the abatement. The delay was not condoned mainly for the reason that no affidavit has been filed by the counsel concerned stating that he was not aware of the death of the parties. Learned Counsel who appeared for the appellants filed an affidavit before this Court stating inter alia that he was not informed about the death of appellants 1 and 2 at the relevant time and therefore he could not file necessary application for impleading and could not brought to the notice of this Court the factum of death. In the light of the fact that the lawayer has filed affidavit before this Court stating the reasons, this Court is of the view that the matter shall be allowed to be agitated by giving an opportunity to the legal heirs of deceased appellants 1 and 2 to contest the case on merits. 7. The Apex Court in the decision reported in **Mithailal** **Dalsangar Singh and others v. Annabai Devram Kini and others (2003) 10 SCC 691)** held that the courts have to adopt a justice-orientated approach dictated by the uppermost consideration that ordinarily a litigant ought not to be denied an **-7-** ## **F.A.O.No.308/2011** opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the court. 8. It is a fact that the appellate decree was passed without noticing the death of appellants 1 and 2. For the reasons stated in the affidavit filed in support of the I.As. if the parties are unable to file petition in time to implead themselves as the legal heirs of the deceased appellants 1 and 2 and in the light of the finding that the decree is a nullity, the proper course open to the Lower Appellate Court is to re-open the decree and to decide the matter afresh, after affording an opportunity of being heard to the legal heirs of the deceased appellants, who have filed necessary applications for impleading, setting aside the abatement and condoning the delay. This Court has repeatedly held in many cases that in the said circumstances the proper course to be adopted is to set aside the decree of the Lower Appellate Court and to give the **-8-** ## **F.A.O.No.308/2011** legal heirs of the deceased appellants an opportunity to take steps and to proceed with the matter after bringing on record the legal heirs of deceased appellants 1 and 2. In the result, the appeal is allowed. The impugned order is set aside. I.A.Nos.717/2007 and 825/2007 are allowed. Appellants herein are impleaded as the legal heirs of deceased appellants 1 and 2 in A.S.No.17/2000. The delay in filing the petition for setting aside the abatement is condoned. The court below shall dispose of the appeal within a period of six months from the date of appearance of the parties. Sd/- **HARUN-UL-RASHID, JUDGE.** **kcv.** **-9-** ## **F.A.O.No.308/2011**