IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 295 of 2000(C)
1. JACOB
... Petitioner
Vs
1. VIRONI
... Respondent
For Petitioner :SRI.K.L.JOSEPH
For Respondent :SRI.T.B.THANKAPPAN
The Hon'ble MR. Justice K.T.SANKARAN
Dated :21/08/2007
O R D E R
K.T. SANKARAN, J.
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C.R.P. NOS. 295, 296, 297, 298 &
1141 OF 2000
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Dated this the 21st day of August, 2007
O R D E R
The revision petitioners are the defendants in O.S.No.1281 of 1993, on
the file of the Munsiff’s Court, Ernakulam. The suit was filed by the respondents
for declaration and for mandatory and prohibitory injunction. The suit was
decreed on 31.10.1995. The defendants appealed as A.S.No.64 of 1996, on the
file of the Sub Court, Ernakulam. That appeal was dismissed on 31.1.1998. The
defendants filed S.A.No.391 of 1998 challenging the judgment and decree of the
lower Appellate Court.
2. During the pendency of the appeal before the lower Appellate Court,
the second respondent in the appeal (second plaintiff) died on 20.11.1996. It is
stated that the counsel had filed a memo under rule 10A of Order XXII of the
Code of Civil Procedure stating that the second respondent in the appeal was
dead. In spite of that, her legal representatives were not impleaded. However,
without noticing the death of the second respondent in the appeal, the lower
Appellate Court dismissed the appeal on the merits.
3. The Second Appeal was admitted. The respondents appeared. At the
time of hearing, it was pointed out by the respondents that the second
respondent was dead even while the first appeal was pending before the lower
Appellate Court. The appellants submitted that on that ground the Second
C.R.P.NOS.295.296,297,298 & 1141 OF 2000
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Appeal was liable to be allowed and the judgment and decree of the lower
Appellate Court was liable to be set aside. That request was not accepted.
However, this Court while disposing of the Second Appeal held as follows:
“If the appellants feel that they must get the judgment and
decree of the lower appellate court re-opened, it is for them to move
the lower appellate court and it is for the lower appellate court to
consider whether any sufficient grounds are made out. The
appellants cannot take advantage of their own default and seek a
nullification of the judgment of the lower appellate court by filing a
Second Appeal and then pointing out that they had failed to implead
the legal representatives of respondent No.2 in the lower appellate
court. Without prejudice to the right of the appellants herein, who
are the appellants before the lower appellate court to move the
lower appellate court for appropriate reliefs, this Second Appeal is
closed.”
4. After the disposal of the Second Appeal on 26th October, 1998, the
revision petitioners/defendants filed five applications before the lower Appellate
Court. I.A.No.5503 of 1998 was filed to re-open the judgment and decree. The
other applications, namely, I.A.Nos.5504 of 1998, 5508 of 1998, 5507 of 1998
and 5506 of 1998 were respectively to implead the legal representatives of the
second respondent, to set aside the abatement, to condone the delay of 642
days in filing the application for impleadment and to condone the delay of 582
days in filing the application for setting aside the abatement.
5. The court below considered I.A.No.5503 of 1998 (to re-open the
judgment and decree) and by the order dated 9.4.1999, dismissed the
application. Consequently, all the other applications were also dismissed on the
C.R.P.NOS.295.296,297,298 & 1141 OF 2000
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same date. Five Civil Revision Petitions are filed challenging the orders passed
by the lower Appellate Court.
6. The reason for dismissing I.A.No.5503 of 1998 is that while disposing
of S.A.No.391 of 1998, this Court had not remanded the case to the lower
Appellate Court. Reference was made to the decision in Assyamma v. Aisabi
(1976 KLT 101), in which an identical situation arose. In that case, the suit was
dismissed by the trial court and the dismissal was confirmed in appeal. The
plaintiff filed a Second Appeal. In the Second Appeal, two applications were
filed, one for impleading the legal representatives of the second respondent
therein and the other for condoning the delay in filing the Second Appeal as
against the legal representatives. It was contended that the applications were
not maintainable and that the Second Appeal itself was not maintainable. It was
held by the Court thus:
“3. The proper course in the circumstances to be adopted, in
my opinion, is to set aside the ineffective decree of the first appellate
court, giving the appellant herein an opportunity to take such steps
as are necessary to have the abatement set aside, if she is entitled
to do so, and to have the matter proceeded with after bringing on
record the legal representative of the deceased 2nd respondent. In
order to enable the appellant to do this the judgment and decree of
the first appellate court are set aside and the appellant is directed, if
she so chooses, to take appropriate steps to have a proper decree
passed by that court with all the necessary parties on record.
4. Sri.P.C.Balakrishna Menon, the counsel for the appellant,
submits that the two petitions may be sent down to the first appellate
court for disposal. I do not however, consider that it is the correct
thing to do. As the appeal itself is not competent in this Court, the
petitions are also not competent; they are therefore dismissed
C.R.P.NOS.295.296,297,298 & 1141 OF 2000
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without prejudice to the petitioner’s right to seek the remedy
available to her in the first appellate Court. The decision I have
taken is in consonance with the provisions of Order XXII, Rule 9 of
Code of Civil Procedure, and the views expressed in the decisions
reported in K.Manna v. Santra (AIR 1970 Calcutta 99); Achher Singh
v. Ananti (AIR 1971 Punjab 477); Mrs. Gladya Coutts v. Bharkhan
Singh (AIR 1956 Patna 373); Muna Devi v. Ram Shari Devi (AIR
1969 Patna 314) and C.Abdulla v. E.I.Damodaran (AIR 1972 Kerala
116).
The petitions are dismissed; and the second appeal is
disposed of by remanding the matter to the first appellate court
where it would be open to the appellant to move for appropriate
reliefs, if so advised, as indicated above.”
7. In the case on hand, the court below relied on one sentence in the
decision in Assyamma’s case that “the second appeal is disposed of by
remanding the matter to the first appellate court” and held that such a direction
was not issued in the present case while disposing of S.A.No.391 of 1998. It
was noticed that in S.A.No.391 of 1998, this Court refused to set aside the
decree of the lower Appellate Court and only observed that the appellants
therein would be entitled to approach the lower Appellate Court for re-opening
the judgment and decree of the lower Appellate Court. I am of the view that the
court below was not justified in making such a distinction as is done in the order
impugned.
8. When a Second Appeal is filed against the judgment and decree,
which are null and void on account of the non-impleadment of the legal
representatives of the respondent, the Second Appeal itself would not be
C.R.P.NOS.295.296,297,298 & 1141 OF 2000
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maintainable. Therefore, the Second Appeal could not be allowed and the
judgment and decree of the lower Appellate Court could not be set aside on the
ground that the decree is null and void. The case would be different if the
Second Appeal is filed by the respondents in the Appeal before the lower
Appellate Court, voicing the grievance that the lower Appellate Court should not
have allowed the appeal with a dead man on the party array. In such a case, the
respondents in the appeal before the lower Appellate Court could successfully
contend in the Second Appeal that the decree passed by the lower Appellate
Court is a nullity and get the judgment and decree of the lower Appellate Court
set aside. Such a relief would not be available to the appellants in the appeal
before the lower Appellate Court, who failed to implead the legal representatives
of the deceased respondent and whose Appeal was dismissed by the lower
Appellate Court without noticing the death of the said respondent. A distinction
is to be drawn between a decree passed in favour of the appellant who
succeeded in the appeal though he failed to implead the legal representatives of
the deceased respondent in the appeal, on the one hand, and a decree passed
against the appellant on the merits and who also failed to implead the legal
representatives of the deceased respondent, on the other. In the former, the
remaining respondent in the appeal or the legal representatives of the deceased
respondent in the Appeal before the lower Appellate Court has a grievance to
be ventilated in the Second Appeal. That is, the lower Appellate Court should
not have allowed the appeal on the failure of the appellant therein to take steps
C.R.P.NOS.295.296,297,298 & 1141 OF 2000
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to implead the legal representatives of the deceased respondent in that appeal.
In such a situation, the legal representatives of the deceased sole respondent in
the Appeal before the lower appellate court also could file a Second Appeal and
challenge the decree passed in the Appeal. In the latter situation, an appellant,
who failed to file application for impleading the legal representatives of the
deceased respondent cannot successfully challenge the dismissal of his appeal
on the merits, by filing a Second Appeal. Such a person cannot get the
judgment and decree of the lower Appellate Court set aside on account of his
own fault. This distinction was not borne in mind by the lower Appellate Court
while dismissing I.A.No.5503 of 1998. I am the view that the application to re-
open the Appeal filed by the petitioners is maintainable, particularly in view of the
observations in the judgment in S.A.No.391 of 1998.
9. For the aforesaid reasons, I set aside the order passed by the court
below in I.A.No.5503 of 1998 and allow that application. C.R.P.No.297 of 2000
filed by the petitioners challenging the order in I.A.No.5503 of 1998 is
accordingly allowed.
10. The other applications filed before the lower Appellate Court were
dismissed, consequent on the dismissal of I.A.No.5503 of 1998. Since I have
set aside the order in I.A.No.5503 of 1998, all the other Civil Revision Petitions
are also liable to be allowed.
C.R.P.NOS.295.296,297,298 & 1141 OF 2000
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11. Accordingly, the Civil Revision Petitions are allowed. The lower
Appellate Court shall consider and dispose of I.A.Nos.5504 of 1998, 5506 of
1998, 5507 of 1998 and 5508 of 1998 on the merits, after affording an
opportunity to the parties to adduce evidence. Learned counsel for the
respondents submitted that the decree was executed on 18.2.1999 and the
attempt of the revision petitioners is only to harass the respondents. It is also
contended that there is no merit in the applications. Taking into account the
facts and circumstances of the case, I am of the view that the disposal of the
Revisions in the manner indicated above would be on condition that the
petitioners shall pay a sum of Rs.1,500/- as costs to the respondents on or
before 30th September, 2007. If the petitioners fail to pay the costs within time,
the Civil Revision Petitions shall stand dismissed.
The parties shall appear before the lower Appellate Court on 24th
September, 2007.
(K.T.SANKARAN)
Judge
ahz/
K.T.SANKARAN, J.
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C.R.P.NOS.295, 296, 297, 298 &
1141 OF 2000
JUDGMENT
21st August, 2007
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