Allowed

Siddi, v. Harison Malayalam Ltd.

Kerala HC13 Jan 2020OP(C)/13/2020

Case brief

AI extract

What is this about?

Original petition allowed. The court held that a judgment passed against a person who had died during the pendency of the proceedings is a nullity. Legal heirs are entitled to apply for impleadment and reconsideration regardless of subsequent conduct contesting the remanded suit.

What did the court decide?

Original petition allowed. First Appellate Court directed to consider the Exh.P9 application filed by petitioners and dispose of same before summer recess 2020.

Siddi, Vs Harison Malayalam Ltd. — Succession and Inheritance | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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MONDAY, THE 13TH DAY OF JANUARY 2020 / 23RD POUSHA, 1941

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OP(C).No.13 OF 2020

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AGAINST THE ORDER IN OS 499/1990 OF MUNSIFF COURT, KALPETTA

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PETITIONERS:

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1 SIDDI, W/O.LATE SIDDA, RESIDING AT NEDUMKARANA DIVISION, ARRAPETTA ESTATE, POST MEPPADI, PIN - 653 577.

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2 SRUTHI @ KEMPAN, S/O.LATE SIDDA, NEDUMKARANA DIVISION, POST MEPPADI, PIN - 653 577.

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BY ADVS. SRI.P.C.CHACKO(PARATHANAM) SMT.ASHA P.KURIAKOSE

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RESPONDENTS:

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1 HARISON MALAYALAM LTD., ARRAPETTA ESTATE, MEPPADI, PIN - 653 577, MUPPAINAD VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT.

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*2 PUTTUCHENNAN @ MADHAVAN, S/O.LATE SIDHA, NEDUMKARANA DIVISION, ARRAPETTA ESTATE, POST MEPPADI, PIN - 653 577, MUPPAINAD VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT.

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3 SIDHRAJAN, S/O.LATE SIDDA, NEDUMKARANA DIVISION, ARRAPETTA ESTATE, POST MEPPADI, PIN - 653 577, MUPPAINAD VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT.

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*** (The second and third respondents are deleted from the party array at the risk of the petitioners as per order dated 13.01.2020 in I.A.No.1/2020.)**

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SRI. M.GOPIKRISHNAN NAMBIAR

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

OP(C).No.13 OF 2020

JUDGMENT

This original petition has been filed by the legal heirs of the defendant in O.S.499/1990, on the files of the Munsiff Court, Kalpetta, praying that the Sub Court, Sulthanbatheri be directed to consider Ext.P9 application preferred by them in A.S.No.34/2008.

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According to the petitioners, their predecessor-ininterest, Sri.Sidda, was the sole defendant in the Suit filed by the first respondent herein and that on the Suit being dismissed, he had filed A.S.No.34/2008 before the Sub Court, Sulthanbatheri. They say that pending the Suit, Sri.Sidda died but that, without noticing the same, the First Appellate Court allowed the Appeal and remanded the Suit for fresh trial and disposal. They say that, therefore, they were left with no other option but to file Ext.P9 application before the First Appellate Court, relying on the judgment of this Court in Paru v. Devaki Varassiar [1992 (2) KLT 687]. They allege that the First Appellate Court, however, refused to consider their application and therefore, prays that this petition be allowed, directing the said Court to take up the said application and dispose it of in terms of law.

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In response, Sri.Gopikrishnan Nambiar, the learned

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OP(C).No.13 OF 2020

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counsel appearing for the first respondent - company, conceded that Sri.Sidda - the original defendant - died during the pendency of A.S.No.34/2008 before the First Appellate Court but contended that this would not make the judgment of the said Court a nullity, because after the Suit was remanded, the legal heirs of Sri.Sidda, namely the petitioners herein, were impleaded on the party array and that the Trial Court went on with fresh disposal of the Suit. He adds that the petitioners herein, by their conduct, have acquiesced to the judgment of the First Appellate Court since, for nearly four years, they contested the Suit, without raising any complaint as regards the validity of the remand order. He, therefore, prays that this petition be dismissed.

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From the afore narration, it is without doubt that the fact of the death of Sri.Sidda pending A.S.No.34/2008, is now admitted by both sides. The only question, therefore, is whether the subsequent conduct of the petitioners herein in having co-operated with the trial, without rising an issue against the order of remand by the First Appellate Court being a nullity, can be held against them in law; and whether, consequently, they would lose their right to have Ext.P9 considered by the First Appellate Court.

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OP(C).No.13 OF 2020

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When I consider the afore aspect, it is indubitable that it has already been declared by this Court in Paru (supra) that when an appeal is disposed of without noticing the death of a party, then the proper remedy of the legal heirs of the deceased party is to move the Appellate Court to get themselves impleaded and for getting a proper reconsideration of the appeal.

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In the case at hand, since it is conceded that the sole defendant had died pending A.S.No.34/2008, it becomes incontestable that the judgment of the First Appellate Court was passed against a dead person and therefore, is a nullity. Obviously, therefore, all consequences flowing out of the order of remand made by the said court would also be untenable in law.

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That said, even assuming that the conduct of the petitioners herein, who are the legal heirs of the deceased sole defendant, can be taken into account, it would not change the legal position because the judgment of the First Appellate Court and the consequent order of remand were both made against Sri.Sidda at the time when he had already died. Ineluctably therefore, all consequences resultant to the said judgment would also be of no legal validity.

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OP(C).No.13 OF 2020

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I am, therefore, of the firm view that the petitioners are entitled to the relief sought for in this original petition, to have their application, namely Ext.P9 considered by the First Appellate Court, in terms of the judgment of this Court in Paru (supra).

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Resultantly, I allow this original petition and direct the First Appellate Court, namely the Sub Court, Sulthanbatheri, to consider Ext.P9 application filed by the petitioners herein and dispose of the same, after following due procedure, before the date on which the Civil Courts close for the summer recess, 2020.

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Needless to say, until such time as the Fist Appellate Court considers Ext.P9 and disposes of the same, all further action pursuant to the judgment of the Munsiff's Court, Kalpetta, in O.S.No.499/1990 will stand deferred.

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In the rather peculiar circumstances I have noticed in this writ petition, I do not deem it necessary to make any order as to costs and direct the parties to suffer their respective costs in this case.

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Sd/- DEVAN RAMACHANDRAN

Stu

JUDGE

OP(C).No.13 OF 2020

APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1 PHOTOGRAPH OF THE HOUSE OF THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE COMMUNITY CERTIFICATE ISSUED IN FAVOUR OF THE 2ND PETITIONER FROM TALUK OFFICE, VYTHIRI.

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EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 19/07/2008 IN OS NO.499/1990 ON THE FILES OF MUNSIFF'S COURT, KALPATTA.

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EXHIBIT P4 TRUE COPY OF THE DEATH CERTIFICATE ISSUED BY THE SECRETARY MUPPAINAD PANCHAYATH DATED 30/08/2013. EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 12/12/2013 IN AS NO.34 OF 2008 IN THE FILES OF SUB COURT, SULTHANBATHERI.

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EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 20/08/2014 IN OS NO.499/1990 ON THE FILES OF MUNSIFF COURT, KALPATTA.

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EXHIBIT P7 TRUE COPY OF THE ORDER DATED 08/08/2018 IN EA NO.207/2018 IN EP NO.134/2017 IN OS NO.499/1990 ON THE FILES OF MUNSIFF COURT, KALPATTA.

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EXHIBIT P8 TRUE COPY OF THE ORDER DATED 30/08/2019 IN EA NO.98 OF 2019 IN EP NO.134/2017 IN OS NO.499/1990 ON THE FILE OF MUNSIFF COURT, KALPATTA.

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EXHIBIT P9 TRUE COPY OF THE UNNUMBERED IA OF 2019 DATED 21/12/2019 IN AS NO.34/2008 ON THE FILE OF SUB COURT, SULTHANBATHERI.

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RESPONDENTS' EXHIBITS : NIL

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//TRUE COPY//

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P.A TO JUDGE.

Siddi, v. Harison Malayalam Ltd.

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Siddi, v. Harison Malayalam Ltd.

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