R.S.A. No. 967 of 2005

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 4TH DAY OF DECEMBER 2012/13TH AGRAHAYANA 1934** ## **RSA.NO. 967 OF 2005 ( )** **---------------------------------AS.241/2002 OF ADDITIONAL SUB COURT, ALAPPUZHA OS.869/2000 OF PRINCIPAL MUNSIFF'S COURT, ALAPPUZHA** ## **APPELLANT(S)/APPELLANTS/DEFENDANTS 1,5 & 6:** **---------------------------------------------------------------------------** **1. P. HAREENDRA BABU, S/O. PRABHAKARAN LAL BHAVAN, ATHIRUNKAL MURI, KODAL VILLAGE ADOOR TALUK.** ## **2. P. SUMAM, D/O. PRABHAKARAN,** ## **SMITHA BHAVAN, CHEMMANNOOR, PUNALOOR.** **3. SUBHASHINI, W/O. PRABHAKARAN, REMANILAYAM, ATHIRUNKAL MURI, KODAL VILLAGE ADOOR TALUK.** **BY ADVS.SRI.T.K.VENUGOPALAN SRI.V.DEVAN** ## **RESPONDENT(S)/PLAINTIFF & DEFENDANTS 2 & 3:** **--------------------------------------------------------------------------** **1. AISWARYA TRUST, KANICHUKULANGARA REPRESENTED BY SECRETARY, SATHEESAN, S/O. VAVA RESIDING AT THEKKEMADATHIL CHERTHALA THEKKU VILLAGE.** **2. P.R. SALEEM, S/O. PRABHAKARAN, RAMANILAYAM, ATHIRUNKAL MURI, KODAL VILLAGE ADOOR TALUK.** ## **3. P. SUBHASH, S/O. PRABHAKARAN, RAMANILAYAM, ATHIRUNKAL MURI, KODAL VILLAGE ADOOR TALUK.** **BY ADV. SRI.G.GOPAKUMAR (CHERTHALA)** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 4.12.2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No. 967 of 2005 ==================================== Dated this the 04[th] day of December, 2012** ## **J U D G M E N T** The Second Appeal arises from the judgment and decree of the Munsiff's Court, Alappuzha in O.S. No.869 of 2000, modified by the Additional Sub Court, Alappuzha in A.S. No.241 of 2002. 2. The parties are referred as plaintiff and defendants as in the trial court. 3. According to the plaintiff, the late Prabhakaran, father of defendants 1 to 5 and husband of the 6[th] defendant borrowed Rs.30,000/- from it on 26.09.1997 and executed Ext.A1, demand promissory note undertaking to repay the said amount on demand with interest at the rate of 21% per annum. Prabhakran did not pay the amount. After his death a demand was made to the defendants through notice. There was no payment. Hence the suit. 4. Defendants 1 and 3 to 5 denied that Prabhakaran had any such transaction with the plaintiff or executed Ext.A1, demand promissory note. They claimed that the document is fabricated. **R.S.A. No.967 of 2005** ## -: 2 :- They also claimed that since Ext.A1, demand promissory note is materially altered, it is not enforceable. 5. The 4[th] defendant expired on 24.02.2001 and he has not inherited any property of the late Prabhakaran. The defendants also set up a plea of limitation for the suit. 6. The trial court observed that though the maintainability of the suit is challenged the plaintiff had obtained leave of the court as per Rule 8 Order I of the Code of Civil Procedure (for short, “the Code”) as per order on I.A. No.4042 of 2000 and made a publication that the suit is being filed representing all persons interested in the plaintiff-Trust and therefore the suit is maintainable. 7. Regarding execution of Ext.A1, demand promissory note the trial court acted upon the evidence of P.Ws1 and 2 and found in favour. As regards the alleged material alteration, the trial court relied on the evidence of P.W1 that the correction was made in Ext.A1 even at the time that document was executed. So holding, a decree was granted against the defendants directing that the amount is to be realized from the assets of the late Prabhakaran inherited by them. 8. In appeal, the learned Sub Judge held that since no steps were taken in the suit against the 2[nd] defendant no decree could be passed against the 2[nd] defendant. As regards the ## **R.S.A. No.967 of 2005** ## -: 3 :- contention that in spite of death of the 4[th] defendant his legal representatives are not impleaded, the first appellate court observed that since before death of the 4[th] defendant he was set ex parte, it is not necessary to implead the legal representatives in view of Rule 4(4) of Order XXII of the Code. So holding, the decree was modified and sustained as against defendants 1 and 3 to 6, the amount to be realized from the assets of Prabhakaran in their hands. That judgment and decree are under challenge in this Second Appeal at the instance of defendants 1, 5 and 6 on the following substantial questions of law are framed for a decision: (i) Whether on the facts and circumstances of the case, failure of the plaintiff to seek permission of the court under Rule 4 (4) of Order XXII of the Code to bring on record the legal representative of the deceased 4[th] defendant who was ex parte, is sufficient to dismiss the suit? (ii) Whether exemption from bringing on record the legal representatives of the deceased 4[th] defendant is automatic under Rule 4(4) of Order XXII of the Code or whether the plaintiff should seek exemption? (iii) Whether the absence of legal representatives of deceased 4[th] defendant in the proceedings result in abatement of ## **R.S.A. No.967 of 2005** ## -: 4 :- the suit in toto? 9. It is contended by the learned counsel that since due execution of Ext.A1, demand promissory note is not proved and at any rate as it is proved to be materially altered, it cannot be acted upon. Further contention is that exemption under Rule 4 (4) of Order XXII of the Code is not automatic and that there must be an application to that effect on which the court has to pass an order. It is also contended that non-impleadment of legal representatives of the deceased 4[th] defendant would result in abatement of the suit in toto. At any rate, the deceased 4[th] defendant could not have been made liable. 10. So far as execution of Ext.A1 is concerned, P.Ws.1 and 2 have given evidence. Since the executant of Ext.A1 was not alive at the time of trial, there was no convincing contra evidence regarding the plea raised by the defendants. The courts below acted upon the evidence of P.Ws.1 and 2 and found in favour of due execution of Ext.A1. That is a finding of fact based on evidence and involves no substantial question of law. 11. Turning to the plea of material alteration, it is seen from Ext.A1 that it is in printed form and the words “1½” (in Malayalam, referring to the rate of interest) is seen scored off and the figure “1¾” is written. The learned counsel has placed reliance on the decision in **Sankara Pillai v. Usman Settu** ## **R.S.A. No.967 of 2005** ## -: 5 :- (1963 KLT 241) to contend that when the instrument appears to be altered on the face of it, burden was on the plaintiff to prove that there was no alteration after its execution. 12. Assuming so, there is the evidence of P.W1 who claimed direct knowledge about the transaction. He stated that the correction in Ext.A1 concerning the rate of interest was made even at the time that document was executed. That evidence was found believable by the courts below. Acting upon the evidence of P.W1, the courts below found that the correction in Ext.A1 was made even at the time it was executed. As such the question of alteration making Ext.A1 invalid does not arise. 13. The substantial questions of law framed for a decision in the Second Appeal is as to the application of Rule 4(4) of Order XXII of the Code. The said provision says that the court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any defendant who has failed to file a written statement or who having filed it has failed to appear and contest the suit at the hearing. In this case the 4[th] defendant was set ex parte and later he expired. The first appellate court has proceeded as if in view of Rule 4(4) of Order XXII of the Code, the 4[th] defendant need not be exempted and a decree can be passed against him also. 14. In **Zahirul Islam v. Mohd. Usman** ([2003] 1 ## **R.S.A. No.967 of 2005** ## -: 6 :- SCC 476) it is held that exemption from bringing on record legal representatives of deceased defendant is not automatic and that the plaintiff must seek permission of the court under Rule 4(4) of Order XXII of the Code. 15. In this case, it is not shown that the plaintiff had obtained permission of court at any stage to exempt impleadment of legal representatives of the deceased 4[th] defendant. Hence the 4[th] defendant could not be made liable. 16. The question whether the share of assets if any, of the late Prabhakaran inherited by the 4[th] defendant would be liable to be proceeded against in execution is not required to be decided in this appeal and hence is left open. 17. In view of Rule 4(4) of Order XXII of the Code explained in **Zahirul Islam v. Mohd. Usman** (supra) the first appellate court was not correct in grating a decree against the deceased 4[th] defendant without impleading his legal representatives on the premise that his death was after he was set ex parte. That part of the decision of the first appellate court cannot be sustained. 18. The other contention that on the death of the 4[th] defendant and consequent to his non-impleadment the suit as a whole would abate, cannot be accepted as the liability of the legal representatives to discharge the liability is joint and several. ## **R.S.A. No.967 of 2005** -: 7 :- 19. The substantial questions of law framed are answered as above. Resultantly, the Second Appeal is allowed in part as under: (i) Judgment and decree of the Additional Sub Court, Alappuzha in A.S. No.241 of 2002 to the extent it concerned the deceased 4[th] defendant are set aside. (ii) In other respects, the judgment and decree of the first appellate court are confirmed. (iii) Parties are directed to suffer their costs in this Appeal. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv