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Mathevan Damodaran and ors. Vs. Saraswathi Amma and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.M.A. No. 41 of 1970 and S.A. No. 437 of 1970
Judge
Reported inAIR1972Ker204
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rules 3 and 9(2)
AppellantMathevan Damodaran and ors.
RespondentSaraswathi Amma and ors.
Appellant Advocate G. Viswanatha Iyer, Adv.
Respondent Advocate Neelakanta Iyer, Adv.
Cases ReferredShamhhatta v. Mena Ramakrishna Bhatta
Excerpt:
.....position if it is assumed that the surviv ing appellants are bound to seek to set aside an abatement in regard to one of the deceased appellants and their failure to do so would prejudice even the legal representatives who come in to set aside the abatement with sufficient excuse for the delay......who was the 2nd defendant in the suit, died. the surviving appellants were defendants 1 and 4. the legal representatives of the deceased 2nd appellant did not seek to implead themselves as additional appellants in time, with the result the appeal abated as against the 2nd appellant. subsequently they moved an application to set aside the abatement as against the 2nd appellant and also sought condonation of the delay in making the application for setting aside the abatement. the court below found that the legal representatives have not shown sufficient cause for setting aside the abatement and therefore dismissed the petition. since the appeal had been jointly filed by three of the defendants and it abated as against one of them the appellate court took the view that the appeal was no.....
Judgment:

P. Subramonian Poti, J.

1. During the pendency of the appeal before the court below the 2nd appellant, who was the 2nd defendant in the suit, died. The surviving appellants were defendants 1 and 4. The legal representatives of the deceased 2nd appellant did not seek to implead themselves as additional appellants in time, with the result the appeal abated as against the 2nd appellant. Subsequently they moved an application to set aside the abatement as against the 2nd appellant and also sought condonation of the delay in making the application for setting aside the abatement. The court below found that the legal representatives have not shown sufficient cause for setting aside the abatement and therefore dismissed the petition. Since the appeal had been jointly filed by three of the defendants and it abated as against one of them the appellate court took the view that the appeal was no longer maintainable and consequently dismissed the appeal. The order refusing to set aside the abatement is challenged in the Civil Miscellaneous Appeal and the decree of the court below dismissing the suit on the ground that the appeal itself was not maintainable when the appeal abated as against the 2nd appellant is challenged in the second appeal.

2. On the merits I cannot agree with the court below that the legal representatives of the 2nd defendant had not shown sufficient cause to Get aside the abatement of the appeal as against the 2nd appellant. In the affidavit accompanying the petition it is averred that at the time of death of the deceased 2nd appellant and thereafter his wife and children were not aware of the pendency of such an appeal, that they were living all along at Nedumangad with the 1st petitioner's father and that soon after they came to know of the pendency of the appeal on 30-11-1968, arrangement was made to file the petition to set aside the abatement. There is no counter-affidavit in the case filed by any of the contestants, so much so the averments in the affidavit remain unrefuted. There is an objection filed. But even in the objection there is no circumstance indicated to warrant the court to assume that the statements in the affidavit are false. The categorical averments in the affidavit of the 1st petitioner that she and her children were living in Nedumangad with her father are not in any way denied in the objection. There is also no circumstance pointed out which would be sufficient for the court to assume that in spite of the categorical statement of the 1st peitioner that she was not aware of the pendency of this appeal she must be taken to have been aware of it. The learned Judge who has dismissed the application of the petitioners seems to think that since 2nd defendant must have been living with his wife and children prior to his death he must have mentioned about the pendency of the appeal to the first petitioner. That is mainly the basis for refusal of the prayer of tho petitioners to set aside the abatement. But I think this assumption is quite unwarranted as there is nothing unusual if the deceased had not mentioned such matters to his wife or children. One need not assume that it would always be the case that a person discloses all these matters to his wife and children. Therefore, in the absence of any circumstance which would justify disbelieving the petitioners especially when their case is supported by an affidavit of the first petitioner for which there is no counter-affidavit in answer, I should think that I Can accept their case and hold that the delay was because of the ignorance of the pendency of an appeal to which their Dredeccssor-in-interest was a party. If that be the case, there is sufficient cause to excuse the delay in filing the petition for im-pleading the petitioners as legal representatives and for setting aside the abatement.

3. A rather interesting argument is advanced on behalf of the respondents in the case. It is said that even though the legal representatives of the 2nd defendant were not aware of the pendency of the appeal and so far as they are concerned there may be sufficient justification for not coming in on the party array earlier that would not be the case 'with appellants 1 and 3, who, according to counsel for the respondents, could have moved for impleading the legal representatives of the 2nd appellant in time. This necessarily leads me to the question whether an application to set aside abatement contemplated in Rule 9 (2) of Order 22 of the Civil P. C. can be moved by the surviving appellants in an appeal or whether it should be moved by the legal representatives of the deceased appellant. The reference to plaintiff and defendant in Order 22 has to be read as including the appellant and respondent in regard to appeals. The provisions of Order 22. Rule 3 indicate that where, within the time limited by law, no application to implead the legal representatives of a deceased plaintiff or a deceased appellant is made the suit or appeal, as the case may be, shall abate so far as the deceased plaintiff or appellant is concerned. Even assuming that the rule authorises not only the legal representatives to move an application under the rule but also the surviving plaintiff or appellants as the case may be, the question is whether this would be the case with regard to an application under Order 22, Rule 9 (2) for setting aside an abatement. This leads me to the consideration of the said rule.

4. Order 22, Rule 9 reads as follows:--

'(i) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.

(2) The plaintiff or the person claiming to be the legal representative ol a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is provided that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.

(3) The provisions of Section 5 of the Indian Limitation Act, 1877. shall apply to applications under Sub-rule (2)'. It is Sub-rule (2) which is relevant for the purpose. That rule refers to abatements coming within the scope of Order 22, Rule 3 and 4 and dismissals corning within the scope of Order 22. Rule 8. In the latter case the application is to be by an assignee or a receiver. That is not the case with which I am concerned here. Therefore only the rule as it relates to abatement under Order 22, Rules 3 and 4 need be referred to and that read in the context of an appeal when one of the appellants dies can be simplified as follows:--

'The appellant or the person claim-Ing to be the legal representative of a deceased appellant may apply for an order to set aside the abatement; and if it is proved that he was prevented by any sufficient cause from continuing the appeal the court shall set aside the abatement upon such terms as to costs or otherwise as it thinks fit'.

5. Before I construe this Rule I will have to consider what will be the position if it is assumed that the surviv ing appellants are bound to seek to set aside an abatement in regard to one of the deceased appellants and their failure to do so would prejudice even the legal representatives who come in to set aside the abatement with sufficient excuse for the delay. There may be cases where the legal representatives of a deceased appellant may not be aware of the pendency of an appeal and as soon as they become aware of such pendency they may approach the court. In such a case there would be sufficient cause to excuse the delay in moving the application for setting aside the abatement and the legal representatives would be as of right entitled to come in. Will that right of the legal representatives be lost by the inaction of the surviving appellants assuming that it is their duty to seek the impleading of the legal representatives of the deceased appellant. It appears to me ratber strange that the valuable rights of a party is lost not by his inaction but due to the conduct of another party in not acting at the proper time. Unless one is compelled to reconcile with such a situation I do not think any rule need be read in that manner. I am referring to this because it is easy to understand Rule 9 properly in this background.

6. I have already referred to the rule as it would appear in relation to an appeal and I am now construing that rule in that simplified form. The reference to the appellant therein cannot be taken as a reference to one or other of several appellants. No doubt the singular includes plural. Therefore it may be that the appellant may refer to appellants where there are more than one appellant. But in the context of the rule, unless there is some indication to the contrary it will be difficult to read the term 'appellant' as meaning some of the appellants or the surviving appellants especially when the very order refers to the term surviving appellants where that idea is indicated. Therefore it can only refer to the sole appellant or all the appellants and that can only be with reference to an application by them to set aside the abatement. That would not be a case when one of them is dead, but one of the parties in the opposite array has died and the appeal has abated against him. Necessarily the reference must be to the setting aside of the abatement under Order 22, Rule 4 of the Civil P. C. The reference to person claiming to be the legal representative of a deceased plaintiff must therefore be to a case under Order 22, Rule 3. Possibly that may refer to even a ease under Order 22, Rule 4 because there may be cases where the appellant and one or other respondents may die and the legal representatives of the appellants may have to seek the impleading of the deceased respondent. I am only concerned here with showing that the appellant referred to in Order 22, Rule 9 (2) has reference to all the appellants and therefore necessarily to a case where none of the appellants is dead and not to surviving appellants and therefore that rule cannot be read as enabling the surviving appellants to seek to set aside the abatement. When one of the appellants is dead it is that part of the rule which refers to the application by the person claiming to be the legal representative of the deceased appellant that applies. Therefore, the application for setting aside an abatement under Order 22. Rule 3 can be made only by the legal representative of the deceased appellant.

7. In this case so far as the legal representatives of the deceased appellant are concerned the application has been in time. Now that I have found that the delay is explained, the inaction of appellants 1 and 3 will not in any way affect the rights of the legal representatives of the second appellant. Hence Civil Miscellaneous Appeal has to be allowed setting aside the order of the court below. The appellants in the Civil Miscellaneous Appeal will have to be impleaded as additional appellants in the appeal.

8. The appeal itself has been dismissed following the decisions of the Supreme Court that in a case where persons jointly interested in the result of the suit have filed the appeal and one of them dies the appeal cannot be continued if as against the person who is dead it abates. That has been followed in the decision of this Court in Shamhhatta v. Mena Ramakrishna Bhatta, (ILR (1971) 2 Ker 99). The view taken by the court below was therefore right, but since I am reversing the order on the application to set aside the abatement and directing, that the legal representatives should be brought on the party array as appellants, the decision of the court bel:iw has necessarily to be vacated and the case has to be sent back to the appellate Court to enable that court to proceed with appeal on the merits. The appeal is disposed of as above. The parties will suffer costs both in the appeal and Civil Miscellaneous Appeal.


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