IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 174 of 2009()
1. AMBILIDHARAN NAIR, METHANTE AYYATHU
... Petitioner
2. NANU NAIR VASUDEVAN NAIR,
Vs
1. SAHADEVAN NAIR,
... Respondent
For Petitioner :SRI.P.VIJAYAKUMAR
For Respondent :SRI.D.KISHORE
The Hon'ble MR. Justice V.RAMKUMAR
Dated :10/02/2010
O R D E R
V. RAMKUMAR , J.
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C.R.P. No. 174 of 2009
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Dated this the 10th day of February, 2010.
ORDER
The revision petitioner is the defendant in O.S. No. 37
of 2006 on the file of the Munsiff’s Court, Adoor. The said
suit was filed by one Narayanan Nair on behalf of his
brother (the respondent herein) Sahadevan Nair who was
employed at Nagpur. The suit was for fixation of boundary
and for consequential injunction. While so, the said
Narayanan Nair died on 15.08.2007. On 01.03.2008, the
respondent Sahadevan Nair who is the real owner filed I.A
No. 261 of 2008 under Order 1 Rule 10 C.P.C to implead
him as the additional 2nd plaintiff. The said application was
opposed by the revision petitioner contending inter alia that
the death of Narayanan Nair was conveniently suppressed,
that the suit had abated and the application was filed
without seeking to set aside the abatement caused on
account of the death of Narayanan Nair and filed beyond
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the period of limitation.
2. The court below as per the impugned order dated
30.07.2008 allowed the application holding that the person
who sought impleadment was the real owner of the property
even according to the plaint averments and that for a
proper adjudication of the matters in controversy between
the parties, he should be impleaded as the additional 2nd
plaintiff. It is the said order which is assailed in this
revision.
3. The learned counsel appearing for the revision
petitioner raised the following submissions before me in
support of the revision:-
The suit was not filed by Sahadevan Nair, the
respondent herein but was filed by one Narayanan Nair on
behalf of Sahadevan Nair. The said plaintiff Narayanan
Nair died on 15.08.2007. So, on the expiry of 90 days, the
suit abated on 15.11.2007. Hence, on 01.03.2008, the
respondent Sahadevan Nair could not have sought his
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impleadment as the additional 2nd respondent without
getting the abatement set aside and without getting the
delay condoned. He had also suppressed the date of death
of Narayanan Nair.
4. I cannot agree with the above submissions. It is
true that Narayanan Nair was the plaintiff. But he had
made it clear in the plaint itself that the suit was filed on
behalf of his brother Sahadevan Nair who was employed at
Nagpur. So, for all intents and purposes, it was Sahadevan
Nair who was the plaintiff. Narayanan Nair who filed the
suit on behalf Sahadevan Nair died on 15.08.2007. There
cannot be any dispute that even after the death of
Narayanan Nair, the cause of action which was available to
his brother Sahadevan Nair would continue to be available
to him. What was needed was only a substitution. Hence,
the court below was not wrong in allowing the application
for impleading the real owner Sahadevan Nair as additional
2nd plaintiff notwithstanding the fact that the abatement of
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the suit was not got set aside or the delay in setting aside
the abatement was not got condoned. I do not find any
error of jurisdiction in the impugned order so as to warrant
interference under Section 115 C.P.C.
This revision is accordingly dismissed.
Dated this the 10th day of February, 2010.
V. RAMKUMAR, JUDGE.
rv
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V. RAMKUMAR , J.
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C.M. Application No. 176 of 2009
in
C.R.P. No. 174 of 2009
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Dated this the 10th day of February, 2010.
ORDER
This is a petition to condone the delay of 61 days in filing
the revision.
Heard both sides. Having regard to the averments in the
affidavit in support of the petition, the delay is condoned.
Dated this the 10th day of February, 2010.
V. RAMKUMAR, JUDGE.
rv
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