Sajeev Raghavan Anakkallumkal House v. Claramma Varadakuzhiyil

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Sathish Ninan
Judgment Date: 2019-07-01
Court Decision / Holding: The impugned orders are set aside. The appellant-petitioner shall stand impleaded as Additional 3rd appellant in A.S.No.297/2006 and the appeal shall stand re-admitted to file. The learned District Court will hear and dispose of the appeal on merits. Parties to appear before the District Court on 05/08/2019.
Final Disposition: Appeal allowed in part: impugned orders set aside; appellant impleaded as Additional 3rd appellant; appeal readmitted for merits; District Court to decide on merits with notice to appear on 05/08/2019.

Parties to the Case

Appellants / Petitioners

Sajeev Raghavan Anakkallumkial House, Kozha Kara, Kuravilangadu Village

Respondents

Claramma Varadakuzhiyil, Padinjattumbhagom Kara, Athirampuzha Village, PIN 686562
Ramachandran Nair, Poonithura House, Padinjattumbhagom Kara, Athirampuzha Village, PIN 686562
Sathy K. Nair, Poonithura House, Padinjattumbhagam Kara, Athirampuzha Village, PIN 686562
Rajappan Pillai, Marukkattill House, Kizhakumbhagom Kara, Ettumanoor Village, Kottayam TALUK, PIN 686631
Baby Pulayaruthottathil, Kalathooru Kara, Kuravilangadu Village, Meenachil TALUK, PIN 686633
Rosily Pulayaruthottathil, Kalathooru Kara, Kuravilangadu Village, Meenachil TALUK, PIN 686633
ADDL Sebastian George Pillai (R7)
ADDL Annamma R8
ADDL Devassia Devassia @ Kunjunju R9
ADDL Devassia Issac R10
ADDL Marikkutty Sebastian R11
ADDL Jeraldhan R12
ADDL Rosily Sebastian R13
ADDL Jincy R14

Legal Representation & Advocates

Counsels for Petitioners

• Sri.P.B.Krishnan
• Smt.Geetha P.Menon
• Sri.N.Ajith
• Sri.P.B.Subramanyan

Counsels for Respondents

• Sri.P.Babu Kumar
• Sri.R.S.Kalkura
• Smt.R.Bindu
• Sri.Harish Gopinath
• Sri.M.S.Kaleesh
• Sri.P.Yadhu Kumar
• Sri.Vishnu Babu

Case Synopsis & Summary

This is a first appeal from orders in I.A. No. 2034 of 2009 in A.S. No. 297 of 2006 before the Kerala High Court, involving Sajeev Raghavan as appellant/petitioner and multiple respondents including Claramma Varadakuzhiyil and heirs of various parties. The appellant seeks impleadment as Additional 3rd appellant and restoration of an appeal that was dismissed for non-prosecution. The High Court analyzes Section 146 CPC, which permits proceedings by or against a person claiming under a party, and holds that the appellant-petitioner, as assignee pendente lite and representative of the original appellants, has standing to pursue the appeal. It notes that the appellate court relied on Indian National Congress (I) v. Balan, but Narayanan Vazhunnavar v. Haridasan Namboodiri has held that decision to be per incuriam. The court reasoned that a pendente lite assignee can prosecute in the capacity of a party and that the impugned orders denying impleadment and readmission should be set aside. Accordingly, the appellant shall be impleaded as Additional 3rd appellant in AS No. 297/2006 and the appeal shall be readmitted for merits. The District Court is directed to hear on merits, with parties to appear on 05/08/2019. Additional respondents R7–R14 appear through powers of attorney, and their status is clarified for purposes of representation.

Provisions of Law Cited

Code of Civil Procedure, Section 146

Legal Doctrines & Maxims

per incuriam
assignee pendente lite

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Indian National Congress (I) v. Balan	1990 (2) KLT 954	Overruled	The decision cited by the Appellate Court is held to be per incuriam by Narayanan Vazhunnavar, thus it is not good law in the present context.
Narayanan Vazhunnavar v. Haridasan Namboodiri	1991 (2) KLT 1	Positive	Narayanan Vazhunnavar held Indian National Congress (I) v. Balan to be per incuriam and is used as the controlling authority in the present judgment.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 01ST DAY OF JULY 2019 / 10TH ASHADHA, 1941** ## **FAO.No.319 of 2012** **AGAINST THE ORDER IN I.A.NO.2034 OF 2009 IN AS 297/2006 of ADDITIONAL DISTRICT COURT (ADHOC)-I, KOTTAYAM DATED 20-01-2012** ## **APPELLANT IN FAO/ PETITIONER IN IA:** **SAJEEV RAGHAVAN ANAKKALLUMKIAL HOUSE, KOZHA KARA, KURAVILANGADU VILLAGE.** **BY ADVS. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.B.SUBRAMANYAN** ## **RESPONDENTS IN FAO / RESPONDENTS IN IA:** **1 CLARAMMA VARADAKKUZHIYIL, PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAGE, PIN - 686 562. 2 RAMACHANDRAN NAIR POONITHURA HOUSE, PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAGE PIN - 686 562 3 SATHY K.NAIR POONITHURA HOUSE, PADINJATTUMBHAGAOM KARA, ATHIRAMPUZHA VILLAGE, PIN - 686 562 4 RAJAPPAN PILLAI MARUKKATTIL HOUSE, KIZHAKKUMBHAGOM KARA, ETTUMANOOR VILLAGE, KOTTAYAM TALUK PIN - 686 631. 5 BABY PULAYARUTHOTTATHIL, KALATHOORU KARA, KURAVILANGADU VILLAGE, MEENACHIL TALUK PIN - 686 633** 2 **FAO.No.319 of 2012 & O.P.(C).NO.3176 OF 2012** **6 ROSILY PULAYARUTHOTTATHIL, KALATHOORU KARA, KURAVILANGADU VILLAGE, MEENACHIL TALUK, PIN - 686 633 ADDL SEBASTIAN GEORGE PILLAI R7 AGED 63 YEARS VARADAKKUZHIYIL HOUSE, PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAG, KOTTAYAM TALUK, PIN-686562 ADDL ANNAMMA R8 AGED 61 YEARS VARADAKKUZHIYIL, PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK, PIN-686 562** - **ADDL DEVASSIA DEVASSIA @ KUNJUNJU R9 VARADAKKUZHIYIL, PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK, PIN-686 562** - **ADDL DEVASSIA ISSAC R10 AGED 51 YEARS VARADAKKUZHIYIL, PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK, PIN-686 562** - **ADDL MARIKKUTTY SEBASTIAN R11 AGED 48 YEARS VARADAKKUZHIYIL, PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK, PIN-686 562** **ADDL JERALDHAN R12 AGED 46 YEARS VARADAKKUZHIYIL, PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK, PIN-686 562 - DIED LRS RECORDED** **ITS IS RECORDED THAT THE ADDL.R14 IS THE LEGAL HEIR OF THE DECEASED ADDL. R12 VIDE ORDER DATED 15/12/17 IN MEMO DATED 12/4/17.** - **ADDL ROSILY SEBASTIAN** **R13 AGED 47 YEARS VARADAKKUZHIYIL, PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK ADDL JINCY R14 W/O. LATE JARALD, PAYYAPPALLIYIL HOUSE, KORATTY P.O, NOW RESIDING AT THARAPPEL HOUSE, ATHIRAMPUZHA P.O, ETTUMANUR, PIN-686631** 3 **FAO.No.319 of 2012 & O.P.(C).NO.3176 OF 2012** **(ADDITIONAL RESPONDENTS 8 TO 14 ARE REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER, ADDITIONAL RESPONDENT NO. 7, SEBASTIAN GEORGE PILLAI)** **ADDL. R7 TO ADDL. R14 ARE IMPLEADED VIDE ORDER DATED 10/08/2018 IN I.A. 1608/14** **BY ADVS.** **SRI.P.BABU KUMAR R5 & R6 SRI.R.S.KALKURA ADDL RESPONDENTS 7 & 9 SMT.R.BINDU ADDL RESPONDENTS 7 & 9 SRI.HARISH GOPINATH ADDL RESPONDENTS 7 & 9 SRI.M.S.KALESH ADDL RESPONDENTS 7 & 9 SRI.P.YADHU KUMAR R5 & R6 SRI.VISHNU BABU R5 & R6** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 01.07.2019, ALONG WITH OP(C).3176/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 4 **FAO.No.319 of 2012 & O.P.(C).NO.3176 OF 2012** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 01ST DAY OF JULY 2019 / 10TH ASHADHA, 1941** ## **OP(C).No.3176 of 2012** **AS 297/2006 of ADDITIONAL DISTRICT COURT (ADHOC), KOTTAYAM** ## **PETITIONER:** **SAJEEV RAGHAVAN ANAKKALLUMKAL HOUSE, KOZHA KARA, KURAVILANGADU VILLAGE.** **BY ADV. SRI.P.B.KRISHNAN** ## **RESPONDENTS:** |**1**|**CLARAMMA**| |---|---| ||**VARADAKKUZHIYIL, PADINJATTUMBHAGOM KARA,**| ||**ATHIRAMPUZHA VILLAGE, PIN 686562.**| ||**(DIED, ADDL. R7-R14 IMPLEADED)**| |**2**|**RAMACHANDRAN NAIR**| ||**POONITHURA HOUSE, PADINJATTUMBHAGOM KARA,**| ||**ATHIRAMPUZHA VILLAGE, PIN 686562.**| |**3**|**SATHY K.NAIR**| ||**POONITHURA HOUSE, PADINJATTUMBHAGOM KARA,**| ||**ATHIRAMPUZHA VILLAGE, PIN 686562.**| |**4**|**RAJAPPAN PILLAI**| ||**MARUKKATTIL HOUSE, KIZHAKKUMBHAGOM KARA, ETTUMANOOR**| ||**VILLAGE, KOTTAYAM TALUK, PIN 686631.**| |**5**|**BABY**| ||**PULAYARUTHOTTATHIL, KALATHOOR KARA, KURAVILANGADU**| ||**VILLAGE, MEENACHIL TALUK, PIN 686633.**| 5 **FAO.No.319 of 2012 & O.P.(C).NO.3176 OF 2012** **6 ROSILY PULAYARUTHOTTATHIL, KALATHOORU KARA, KURAVILANGADU VILLAGE, MEENACHIL TALUK, PIN 686633.** **ADDL SEBSTIAN GEORGE PILLAI R7 AGED 63 YEARS VARADIKKUZHIYIL HOUSE, PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK, PIN 686562** **ADDL ANNAMMA R8 AGED 61 YEARS VARADIKKUZHIYIL HOUSE, PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK, PIN 686562** **ADDL DEVASSIA DEVASSIA @ KUNJUNJU R9 VARADIKKUZHIYIL HOUSE, PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK, PIN 686562 ADDL DEVASSIA ISSAC R10 AGED 51 YEARS VARADIKKUZHIYIL HOUSE, PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK, PIN 686562** **ADDL MARIKKUTTY SEBASTIAN R11 AGED 48 YEARS VARADIKKUZHIYIL HOUSE, PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK, PIN 686562** **ADDL JERALDHAN (DIED) R12 AGED 46 YEARS VARADIKKUZHIYIL HOUSE, PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK, PIN 686562 (DIED,LR'S IMPLEADED)** **ADDL ROSILY SEBASTIAN R13 AGED 47 YEARS VARADIKKUZHIYIL HOUSE, PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK, PIN 686562** **ADDL JINCY R14 W/O LATE JERALD, PAYAPPALLIYIL HOUSE, KORATTY PO, NOW RESIDING AT THARAPPEL HOUSE, ATHIRAMPUZHA PO, ETTUMANOOR PIN 686631** **(ADDITIONAL RESPONDENTS 8 TO 14 ARE REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER, ADDITIONAL RESPONDENT NO.7, SEBASTIAN GEORGE PILLAI)** 6 **FAO.No.319 of 2012 & O.P.(C).NO.3176 OF 2012** **ADDITIONAL RESPONDENTS 7-14 ARE IMPLEADED AS THE LR'S OF DECEASED R1 AS PER ORDER DATED 12-06-2019 IN IA 14782/2014** **IT IS RECORDED THAT ADDITIONAL RESPONDENT NO.12 IS DEAD AND ADDITIONAL RESPONDENT NO.14, (WIFE OF R12), WHO IS ALREADY IN THE PARTY ARRAY IS RECORDED AS HIS LEGAL HEIR AS PER ORDER DATED 01-04-2016 IN MEMO DATED16.03.2016 BEARING CF NO.417/2016 683631** **BY ADVS. SRI.P.BABU KUMAR R5 & R6 SRI.HARISH GOPINATH ADDL.R7 & R8 SRI.M.S.KALESH ADDL.R7 & R8 SRI.P.YADHU KUMAR R5 & R6 SRI.R.S.KALKURA** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01.07.2019, ALONG WITH FAO.319/2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 7 **FAO.No.319 of 2012 & O.P.(C).NO.3176 OF 2012** ## **JUDGMENT** The appellant-petitioner is the assignee _pendente lite_ from defendants 1 and 2 who are the appellants in A.S.No.297/2006 of the Additional District Court, Kottayam. The appeal was dismissed for nonprosecution. Thereupon, the appellant-petitioner filed applications seeking to get himself impleaded as additional 3[rd] appellant and also to have the appeal restored back to file. As per the impugned orders, the said applications were dismissed. 2. The order refusing to implead the petitioner as additional appellant is assailed in OP.No.3176/2012 and the order dismissing the application seeking readmission of the appeal is challenged in F.A.O. 3. Heard the learned counsel on either sides. 4. Section 146 of the Code of Civil Procedure reads thus: “Proceedings by or against representatives- Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the 8 **FAO.No.319 of 2012 & O.P.(C).NO.3176 OF 2012** proceeding may be taken or the application may be made by or against any person claiming under him.” The section gives ample authority for the appellantpetitioner to have the appeal restored and prosecuted in his capacity as the assignee _pendente lite,_ he being the representative of the original appellants. The decision relied on by the Appellate Court in _**Indian National Congress (I) v. Balan**_ [1990 (2) KLT 954] has been held to be _per incuriam_ in _**Narayanan Vazhunnavar v. Haridasan Namboodiri**_ [1991 (2) KLT 1]. The applications are only to be allowed. Accordingly, the orders impugned are set aside. The appellant-petitioner shall stand impleaded as Additional 3[rd] appellant in A.S.No.297/2006 and the appeal shall stand re-admitted to file. The learned District Court will hear and dispose of the appeal on merits. Parties to appear before the District Court on 05/08/2019. ## **SD/-** ## **SATHISH NINAN** **JUDGE** rsr 9 **FAO.No.319 of 2012 & O.P.(C).NO.3176 OF 2012** ## **APPENDIX OF OP(C) 3176/2012** **PETITIONER'S/S EXHIBITS: EXHIBIT P1** **TRUE COPY OF ORDER IN IA No. 2034 AND 2035/2009 IN AS No.297 OF 2006 DISTRICT COURT, KOTTAYAM DATED 20-01-2012**