Kansas High Court dismissed writ petition challenging District Judge's order condoning delay and admitting appeal filed against deceased plaintiff. Court held trial Court's negligence in not impleading legal heirs vitiated the defect, allowing amendment under CPC sections 152 and 153.
Original Petition dismissed; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ASHOK MENON
WEDNESDAY, THE 8TH DAY OF AUGUST 2018 / 17TH SRAVANA, 1940
OP(C).No. 1268 of 2016(O)
AGAINST THE ORDER/JUDGMENT IN AS 246/2011 of I ADDL.D.C. & ADDL.MACT,PALAKKAD
PETITIONER(S):
1 DHANABHAGYAM W/O.LATE SADASIVAM, APPUPPILLAYOOR, ERATTAKULAM, NALLEPPULLY, CHITTUR TALUK, PALAKKAD DISTRICT,
2 YASHWANT S/O.LATE SADASIVAM,-DO-
3 AISHWARYA
D/O.LATE SADASIVAM,
-DO-
BY ADVS.SRI.T.C.SURESH MENON
SRI.P.S.APPU SRI.A.R.NIMOD
RESPONDENT(S):
1. SARASWATHY AMMAL W/O.LATE RAMAKRISHNA PILLA, R/A APPUPPILLAYOR, ERATTAKULAM, NALLEPPILLY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678622
2. NAGARAJ S/O.SARASWATHY AMMAL,R/A.APPUPPILLAYOR, ERATTAKULAM, NALLEPPILLY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678622
R1,R2 BY ADV. SRI.BINOY VASUDEVAN R1,R2 BY ADV. SRI.R.MANIKANTAN R1,R2 BY ADV. SMT.P.G.BABITHA R1,R2 BY ADV. SMT.K.J.ANITHA
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04-07-2018, THE COURT ON 08-08-2018 DELIVERED THE FOLLOWING:
OP(C).No. 1268 of 2016 (O)
APPENDIX
PETITIONER(S)' EXHIBITS:
| EXHIBIT |
P1 COPY OF IA NO 976/2008 IN OS NO 71/2006 ON THE FILE OF THE COURT OF THE MUNSIFF OF CHITTUR DTD 18/5/2008 |
|---|---|
| EXHIBIT |
P2 COPY OF THE JUDGMENT IN AS NO 246/2011 ON THE FILE OF THE DISTRICT COURT, PALAKKAD DTD 12/11/2012 |
| EXHIBIT |
P3 COPY OF IA NO 1936/2015 IN AS NO 246/2011 ON THE FILE OF THE IST ADDITIONAL DISTRICT COURT, PALAKKAD DTD 16/10/2015 |
| EXHIBIT |
P4 COPY OF IA NO 1937 IN AS NO 246/2011 ON THE FILE OF THE IST ADDITIONAL DISTRICT COURT,PALAKKAD DTD 16/10/2015 |
| EXHIBIT |
P5 COPY OF THE OBJECTION FILED BY THE PETITIONERS DTD 14/12/2015 |
| EXHIBIT |
P6 COPY OF THE COMMON ORDER IN IA NOS 1936/2015 & 1937/2015 IN AS NO 246/2011 ON THE FILE OF THE COURT OF THE DISTRICT JUDGE OF PALAKKAD DTD 21/3/2016 |
RESPONDENT(S)' EXHIBITS:
NIL
/TRUE COPY/
PA TO JUDGE
dkr
“C.R.”
ASHOK MENON, J.
O.P.(C) No. 1268 of 2016
------------------------------------------Dated this the 8th day of August, 2018
J U D G M E N T
Aggrieved by the order of the learned District Judge, Palakkad in I.A.Nos.1936/2015 and 1937/2015 in A.S.No.246/2011, the respondents are before this Court.
OP(C) 1268/2016
2
representation was made by the appellants and in consequence to which, the appeal was dismissed for default. The appellants filed I.A.No.1936/2015 for condonation of delay of 1043 days and I.A.No.1937/2015 under Order 41, Rule 19, C.P.C. for re-admitting the appeal to file. The petitioners submitted that they were under the impression that the legal heirs of the deceased plaintiff were impleaded as supplemental plaintiffs in the suit, since they had filed an application for getting themselves impleaded consequent to the demise of the original plaintiff. Certified copy of the decree obtained from the trial court did not indicate the fact of death of the original plaintiff or the impleadment of his legal heirs. That is how the appeal happened to be filed in the name of the deceased plaintiff as respondent. The petitioners had moved I.A.Nos. 2962/2012 and 2928/2012 for amendment of the decree and judgment on 30.11.2012 before the trial court. It was then that the trial court noticed the omission to dispose the applications filed by the plaintiff's legal heirs for impleadment and amendment, filed as I.A.Nos.975/2008 and 976/2008. Since the applications filed by the petitioners before the trial court were kept pending, they could
OP(C) 1268/2016
3
not take steps to amend the appeal memorandum. It was only on 10.04.2015 that the trial court ultimately passed orders on I.A.Nos.2926/2012 and 2928/2012 and the petitioners got information of the orders only on 05.09.2015. Copies were applied for and it is submitted that there was no willful default on the part of the petitioners to get the orders of dismissal set aside. The respondents, who were impleaded as legal heirs of the sole plaintiff before the trial court, opposed these applications for condonation of delay and restoration of the appeal. It is stated that the orders were passed by the trial court in I.A.Nos.975/2008 and 976/2008 as early as on 21.05.2008 and therefore the contention that no orders were passed on the I.As. to get the legal heirs impleaded, is not true.
OP(C) 1268/2016
4
the judgment was passed under the premise that the plaintiffs 2 to 4 were on record as additional plaintiffs and as legal heirs of the deceased sole plaintiff. Even though they were not described in the cause title, in para 4 of the judgment of the trial court, it is specifically stated that the plaintiff had died during the pendency of the suit and the legal heirs were impleaded as supplemental plaintiffs 2 to 4. In fact, it is one of the supplemental plaintiff, who was examined as PW1 before the trial court. The fair copy of the judgment and decree was drafted only with the the sole plaintiff as party. The learned District Judge has observed that notice on I.A.Nos.1941/2011 and 1942/2011 filed by respondents 2 to 4 on 31.08.2011 for amendment of the cause title of the judgment and decree was served on the present appellants. Instead of waiting for the omission to be supplied by the trial court, the petitioners preferred to file the appeal on 01.09.2011. The aforesaid applications for supplying the omissions filed by the legal heirs of the deceased plaintiff was ultimately dismissed on 28.11.2011 for the reason that appeal has already been filed. It is only consequent to the dismissal of the appeal on default that the appellants realised
OP(C) 1268/2016
5
the need to get the cause title of the judgment and decree amended and that is how they happened to file I.A.Nos.2926/2012 and 2928/2012 before the trial Court on 30.11.2012. The legal heirs of the deceased plaintiff had also filed I.A.No.1166/2013, apart from the earlier I.A.Nos.975/2008 and 976/2008 to get the plaint as well as the judgment and decree amended. All these three I.As. were taken together and disposed of vide order dated 10.09.2015 and ultimately the cause title of the plaint as well as the judgment and decree were amended by the trial Court, after a lapse of almost three years.
OP(C) 1268/2016
6
I.A.Nos. 1942/2011 and 1942/2011 were filed by the legal heirs on 31.08.2011 and that too was ultimately dismissed for reason that appeal has already been filed. The learned District Judge also observed that Rule 183 of Civil Rules of Practice to notify the draft decree on the notice board of the Court as and when the decree is made ready, has not been strictly complied with. Finding it a fault on the part of the Court and relying on the maxim Actus curiae neminem gravabit, it was observed that the Court will not be justified in relying on the facts alone to dismiss the petitions to restore the appeal, despite the fact that the petitioners were aware of the death of the sole plaintiff and still filed an appeal against a dead person. The delay was therefore, condoned and I.As.Nos. 1936/2015 and 1937/2015 were allowed and the appeal, A.S.No. 246/2011, was restored to file.
OP(C) 1268/2016
7
default. The cause title of which would show Sadasivan as the sole respondent. It is submitted that there was no default on the part of the legal heirs in getting themselves impleaded in the suit. They had filed I.A.No.976/2008, a copy of which is Ext.P1. They were under the impression that the petition filed under Order 22, Rule 3, C.P.C. to get themselves impleaded as supplemental plaintiffs 2 to 4 stands allowed by the trial Court. The defendants were also aware of this fact. Despite that, they filed an appeal against a dead person. The learned Counsel for the petitioners submits that it is a nullity to file appeal against a dead person. The learned Counsel seeks support to his argument in Vareed Jacob v. Jayakumar, 2010 (3) KLT 389, wherein it is held as thus:-
“11. The appeal was admittedly preferred against the sole respondent, the tenant after he had passed away. The appeal, as on the date of its presentation, was against a dead person. The legal representatives of that tenant had been brought on record subsequently after the appeal had been taken on file by the Appellate Authority could not in any way show that the appeal was entertainable under law. When an appeal is filed against a dead person there is no valid appeal recognised under law. In such an appeal, where there was no respondent other than the dead person the question of bringing on record the legal representatives of the dead person by correcting the cause title can be permitted only if such application is moved within the time to move an appeal against the legal
OP(C) 1268/2016
8
representatives of the respondent (dead). In case the appeal to be preferred against the legal representatives has been barred by efflux of time, then, necessarily, the appellant has to file appeal afresh, applying the condonation of delay in filing such appeal.”
The learned Counsel also relies on the decision of the Rajasthan High Court reported in Lal v. Lal Khan, AIR 1990 Raj.17 , wherein it is held that since the appellant himself has been negligent and oblivious in the matter by filing the appeal against a deceased person, he cannot claim the indulgence of the mistake of the Presiding Officer in not allowing the application for impleadment.
The fact remain that the appeal has been filed against a dead person without bringing his legal representatives on records, within the period of limitation, since the appeal is obviously incompetent and it is liable to be dismissed with costs. Hence, the learned Counsel for the petitioners submits that the learned District Judge went wrong in condoning the delay and allowing the appeal to be restored to file, which was originally filed against a dead person, and is, at its inception, a nullity. Relying on the decision reported in Sreedharan v. Sreedharan Embrandini, AIR (Ker) 1968 195, it is argued that the appeal was instituted against a dead person on
OP(C) 1268/2016
9
record and the application for substituting the legal heirs was filed without any application under Section 5 of the Limitation Act to excuse the delay. That since he had knowledge of the death of the respondent in appeal and the appeal was brought against a person, who is dead, the application for amendment and substituting the legal representatives without even filing an application to condone the delay is not sustainable and the appeals are found to be incompetent.
OP(C) 1268/2016
10
Thressa, 1985 KLT 175, wherein it is held that where additional parties are impleaded, it is the duty of the office to carry out such amendments in the pleadings. Only amendment of the pleadings as admissible under Order 6, Rule 17, C.P.C. need be carried out by virtue of petition under Order 1, Rule 10, which can be treated as amendment of the plaint, has to be carried out by the office. Therefore, in the instant case, it was incumbent upon the office of the Court to carry out amendments of the plaint to bring on record the legal heirs of the sole plaintiff before the suit was decreed.
OP(C) 1268/2016
11
filing such an application for amendment, if the delay is satisfactorily explained.
SC 2324, a suit was filed against a dead person as defendant. It was held that, Section 21(1) of the Limitation Act, 1963 permits correction of errors which have been committed due to a mistake made in good faith, but only when the Court permits correction of such mistake. In that event its effect is not to begin from the date on which the application for the purpose was made, or from the date of permission but from the date of the suit, deeming it to have been correctly instituted on an earlier date than the date of making the application. The proviso to sub-section (1) of Section 21 is obviously in line with the spirit and thought of some other provisions in Part III of the Act such as Section 14 providing exclusion of time of proceeding bona fide in Court without jurisdiction, when computing the period of limitation for any suit, and Section 17(1) providing a different period of limitation starting when discovering a fraud or mistake, instead of the commission of fraud or mistake. While invoking the beneficent proviso to sub-
OP(C) 1268/2016
12
section (1) of Section 21, an averment that a mistake was made in good faith by impleading a dead defendant in the suit should be made and the Court must on proof be satisfied that the motion to include the right defendant by substitution or addition was just and proper, the mistake having occurred in good faith. The Court's satisfaction alone breathes life in the suit.
AIR 1925 Mad.1210 (FB), it was held that if an appeal presented against a dead person, the Court may under Section 153, C.P.C. permit the cause title to be amended or may return the appeal memorandum for amendment and representation. The Kerala High Court in Travancore Devaswom Board v. Kandaru Vasu Devaru, 1956 KLT 115, followed the decision of the Madras High Court regarding application of Section 153, C.P.C. to rectify such errors. The Kerala High Court has reiterated in Jose v. Selvin, 2015 KHC 570 : 2015 (3) KLT SN 7, that omission to formally implead the legal representatives can be corrected under Section 153, C.P.C.
OP(C) 1268/2016
13
called upon to consider whether a litigant should suffer on account of the lapse made by an officer of the Court. Applying the well known maxim, actus curiae neminem gravabit -- that an act of Court should do no harm to a litigant, the Hon'ble Supreme Court held that the mistake should be rectified by the Court and the parties relegated to the position on the date when the mistake occurred. Following the decision in Jang Singh (Supra) , the Hon'ble Supreme Court in Om Prakash Marwaha (D) Thr.Lrs. and Others v. Jagdisht Lal Marawah (D) Thr. Lrs, 2009 KHC 4062 : 2009(1) SCC 510, held that when the death of a party was brought to the notice of the Court and by sheer inadvertence, the substitution was not effected by the Court, the mistake should be rectified.
OP(C) 1268/2016
14
against a dead person on the party array. The office of the trial Court was apparently negligent in not carrying out the amendment by substituting the deceased plaintiff with his legal heirs. It is in such circumstances that the Court can resort to Sections 152 and 153 of the C.P.C. to correct the errors in the judgment and the decree. In the instant case, the trial Court had proceeded under the premise that the legal heirs of the deceased plaintiff were on the party array. In fact, one of the legal heirs was examined as PW1. In the judgment of the trial Court it is mentioned that the sole plaintiff is dead and the legal heirs are brought on record. The learned District Judge has therefore, rightly allowed the appeal to be taken on file and it cannot be held that the appeal by itself would be a nullity. The infirmity in the judgment and decree was not due to the any default of the parties, but the Court. Hence, I find no reason to interfere with the findings of the leaned District Judge. The Original Petition is therefore, dismissed. No order as to costs.
Sd/ASHOK MENON Judge
dkr
3 issues framed by the court
Whether appeal filed against a deceased plaintiff without substitution of legal heirs is a nullity.
Whether error in judgment and decree due to court's failure to implead legal heirs vitiates the appeal.
Whether Section 153 CPC applies to permit amendment of cause title when Court's neglect caused inclusion of dead person.
Colour shows how this judgement treated each authority
Vareed Jacob v. JayakumarReferred¶56
Vareed Jacob v. Jayakumar, 2010 (3) KLT 389
Lal v. Lal KhanReferred¶61
Lal v. Lal Khan, AIR 1990 Raj.17 · Who else cites this
Sreedharan v. Sreedharan EmbrandiniDistinguished¶62
Sreedharan v. Sreedharan Embrandini, AIR (Ker) 1968 195 · Who else cites this
Claramma v. ThressaRelied on¶66
Claramma v. Thressa, 1985 KLT 175
Gurcharan Singh v. Surjit SinghRelied on¶70
Gurcharan Singh v. Surjit Singh, 2012 (13) SCC 530 · Who else cites this
Karuppaswamy & Others v. C.RamamurthyRelied on¶74
Karuppaswamy & Others v. C.Ramamurthy, AIR 1993 SC 2324 · Who else cites this
Adusimilli Gopala Kristnayya v. Adivi Lakshmana RaoRelied on¶79
Adusimilli Gopala Kristnayya v. Adivi Lakshmana Rao, AIR 1925 Mad.1210 (FB) · Who else cites this
Travancore Devaswom Board v. Kandaru Vasu DevaruRelied on¶79
Travancore Devaswom Board v. Kandaru Vasu Devaru, 1956 KLT 115
Jose v. SelvinRelied on¶79
Jose v. Selvin, 2015 KHC 570
Jang Singh v. Brij LalRelied on¶81
Jang Singh v. Brij Lal, AIR 1966 SC 1631 · Who else cites this
Om Prakash Marwaha v. Jagdisht Lal MarawahRelied on¶84
Om Prakash Marwaha (D) Thr.Lrs. and Others v. Jagdisht Lal Marawah (D) Thr. Lrs, 2009 KHC 4062
6 provisions across 3 enactments
Dhanabhagiyam W/O.Late Sadasivam
Yashwant S/O.Late Sadasivam
Aishwarya D/O.Late Sadasivam
Saraswathy Ammal W/O.Late Ramakrishna Pilla
Nagaraj S/O.Saraswathy Ammal
Ashok Menon
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
