S. Mohanakumaran Nair and R. Ushadevi Thankachy v. Anas s/o Abdul Hameed and Subaida Beevi (Died)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943** ## **RP.No.781 OF 2020 IN OP(C). 1645/2018** **AGAINST THE JUDGMENT IN OP(C) 1645/2018(O) OF HIGH COURT OF KERALA** ## **PETITIONERS/PETITIONERS:** **1 S.MOHANAKUMARAN NAIR AGED 71 YEARS S/O.P.SANKARA PILLAY, 43/435(1), VALIYA VEEDU LANE, KAMALESWARAM, MANACAUD (PO), THIRUVANANTHAPURAM.** **2 R.USHADEVI THANKACHY, W/O.S.MOHANAKUMARAN NAIR, -DO- -DO-.** ## **BY S.MOHANAKUMARAN NAIR(PARTY IN PERSON)** ## **RESPONDENTS/RESPONDENTS:** - **1 ANAS S/O.ABDUL HAMEED, TC 43/435(2), VALIYA VEEDU LANE, KAMALESWARAM, MANACAUD(P.O.), THIRUVANANTHAPURAM.** - **2 SUBAIDA BEEVI(DIED), W/O.LATE ABDUL HAMEED, TC 43/710, VALIYA VEEDU LANE, KAMALESWARAM, MANACAUD (PO), THIRUVANANTHAPURAM.** ## **BY ADV.SRI.J.HARIKUMAR** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 26.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** RP.No.781 OF 2020 IN OP(C). 1645/2018 2 ## **ORDER** **Dated this the 26th day of March 2021** This review petition is filed by petitioners to review the judgment of this Court in O.P.(C) No.1645/2018 dated 26.9.2019. The operative portion of the judgment reads thus: “6. Anyhow, the issue raised by the petitioners can be sorted out by appreciating Rule 4 of Order XXII of the Code of Civil Procedure, 1908, which read thus: “ **4. Procedure in case of death of one of several defendants** **or of sole defendant.** --(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. (4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such 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; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place. (5) Where-- (a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution RP.No.781 OF 2020 IN OP(C). 1645/2018 3 of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and (b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said section 5 have due regard to the fact of such ignorance, if proved.” 7.On a perusal of sub-rule (1) of Rule 4, one may have a doubt as to who has to implead the legal representative of a defendant. However, on a conjoint reading of sub-rules (4) and (5), it is categoric and clear that the duty to implead the legal representatives of the defendant is upon the plaintiff. The death is reported by the counsel appearing for the deceased defendant. It is true, during the pendency of the Second Appeal, 2nd defendant who was the 2nd appellant died, and the legal heirs ought to have been impleaded. But fact remains, the counsel was not aware of the death and consequently the same could not be brought to the notice of the Court. Anyhow, that issue raised by the petitioners was considered by this Court in the review petition specified above, and has dismissed the review, holding that a review is not maintainable on the ground so raised by the petitioners. 8. It is an admitted fact that the death was reported by the counsel appearing for the 2[nd] respondent as is specified above, and it was thereupon that the court below directed the plaintiffs to implead the legal representative of the 2[nd] defendant. It is also true that, if the death of the 2nd appellant was noticed by the counsel for the appellants during the pendency of the Second Appeal, a duty was cast upon the surviving appellant to implead the legal heirs of the 2[nd] defendant in the second RP.No.781 OF 2020 IN OP(C). 1645/2018 4 appeal. However, since the proceedings in the second appeal are already over and the subject matter was remanded for fresh consideration to the court below, then the procedure contemplated as per Order XXII, Rule (4) will come into play and the petitioners/plaintiffs are liable to implead the legal heirs when the death is reported by the counsel. 9. Having evaluated the fact situations and appreciating the legal circumstances, I do not think there is any illegality, jurisdictional error or other legal infirmity, justifying interference of this Court, exercising the power of supervisory jurisdiction under Article 227 of the Constitution of India. Therefore, the original petition fails, accordingly it is dismissed. However, petitioners are permitted to file suitable application for impleadment along with any consequential applications that are required under law, within a month, and if filed, it shall be considered in accordance with law, at the earliest possible time, and thereafter proceed with the suit proceedings in accordance with law, at the earliest.” 2. Now review petition is filed by the petitioners basically contending that, the impugned judgment states wrongly the law of abatement in Order 22 of the Code of Civil Procedure in the situation of death of an appellant or appellants while the appeal is pending before a Court. It is also submitted that the trial court exceeded its jurisdiction in considering and passing orders when death of 2[nd] appellant occurred while the R.S.A was pending before an appellate court i.e., this Court and the adverse remark passed by the learned Munsiff against the 1[st] petitioner/1[st] plaintiff, a practicing advocate, was only for correctly stating law of abatement and is unwarranted and liable to be RP.No.781 OF 2020 IN OP(C). 1645/2018 5 ## quashed. 3. According to the review petitioners, learned Counsel for appellants never put the factum of death of 2[nd] appellant to the notice of this Court throughout the proceedings of the said R.S.A, though it is made mandatory by rule 10A of C.P.C and it happened that this Court passed the remand order in ignorance of the death of the 2[nd] appellant. Very plainly, this is an order which happened to be passed as the counsel for appellants failed to reveal the death of 2[nd] appellant and it is categorically clear that the order is one passed against a dead person and the said order is invalid in law. In short, the order under remand is an order passed in an appeal that challenged a joint and indivisible decree concurrently passed by Lower Courts. Therefore, according to the review petitioners, the above act of non-disclosure cannot be brushed away casually for the simple reason that the deceased and appellant is none other than the mother of the 1[st] appellant and it will be frightening proposition to assume that the 1[st] appellant was ignorant of the death of 2[nd] appellant, thereby abusing the process of law by playing fraud on Court. 4. According to the review petitioners, it is also pertinent to note that both the appellants were represented by the same counsel throughout the proceedings before this Court and in such situation non-reporting of the death cannot be taken as a casual act, but a calculated and intentional act, which is RP.No.781 OF 2020 IN OP(C). 1645/2018 6 evidenced by the simple fact that the counsel for the defendants brought this to the notice of death of 2[nd] appellant only after remand on 15-7-2015. 5. It is also averred that 1[st] appellant is guilty of commission and omission, which has resulted in abuse of process of law. According to the review petitioners, the 1[st] appellant failed to file application to set aside abatement till date allowing the appeal to abate. This case is governed by Rule 3 read with Rule 11 of Order 22 of CPC and not by Rule 4 of Order 22 of CPC and hence, the order under review has necessarily be re-visited by this Court, especially when 1[st] appellant and his counsel are guilty of intentional failure in disclosing the demise of 2[nd] appellant and in fact came before this Court with unclean hands. It is apposite to quote the 1[st] para of the judgement of the Hon'ble Supreme Court in **O.P. Kathpalia vs Lakhmir Singh (Dead) And Ors.** [(1984) 4 SCC 66], which is squarely applicable in the present case, read thus: “A dispute of a trivial nature between a landlord and now his transferees and the tenant is awaiting disposal for over 3 decades thanks to the literal and unimaginative approach to the provisions of a procedural statute which times without number has been described as one for advancing justice and not to make a mockery of it" 6. I have heard the 1[st] review petitioner Sri.S.Mohanakumaran Nair for himself and as the power of attorney of his wife the 2[nd] petitioner, learned RP.No.781 OF 2020 IN OP(C). 1645/2018 7 counsel for the respondents Sri.J.Harikumar and perused the pleadings and documents on record. 7. In my considered opinion, the findings in the Judgment were rendered taking into account all the legal and factual aspects now put forth in the review petition and it was very specific and did not have any ambiguity at all. The contentions raised in the review petition show that the petitioner is aggrieved since there is illegality in the findings, which in my considered opinion cannot be made as a subject matter of review. In my view, there is no error or any other legal infirmities apparent on the face of the record, justifying interference in the judgment in a review petition especially due to the fact that the material aspects raised in the original petition need alone were to be considered by the court, which was done by this court, and anything material raised in the review petition which was not raised in the original petition cannot be made a factor for review of the Judgment. That being so, nothing remains to be considered in this review petition. Resultantly, the review petition fails, accordingly it is dismissed. **Sd/-** **SHAJI P.CHALY** **JUDGE** smv RP.No.781 OF 2020 IN OP(C). 1645/2018 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE I** **TRUE COPY OF THE JUDGMENT IN OP(C)NO.1645 DATED 28.03.2019.**