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Kanaran Nambiar Vs. Ramunni Nambiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.M.P. No. 2878 of 1960
Judge
Reported inAIR1961Ker290
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rule 6
AppellantKanaran Nambiar
RespondentRamunni Nambiar and ors.
Appellant Advocate V.P. Gopalan Nambiar and; P.C. Balakrishna Menon, Advs.
Respondent Advocate A. Achuthan Nambiar and; T.P. Kelu Nambiar, Advs.
Cases ReferredIn Kehr Singh v. Chanda Singh
Excerpt:
civil - legal representative - order 22 rule 6 of code of civil procedure, 1908 - application filed by 18th respondent to transpose him as supplemental appellant as first appellant died during pendency of matter - judge retired before pronouncing judgment after hearing - next judge ordered for fresh hearing - principle of law - there shall be no abatement by reason of death of either party between conclusion of hearing and pronouncement of judgment - application allowed. - - champalal, air 1934 nag 165. the learned counsel for the petitioner stated that there are rulings to the contra as well, though he did not cite any particular ruling to my notice......that this application has now come up for disposal before me. 4. shri achuthan nambiar, the learned counsel for some of the respondents in this case, submitted that no notice of either of the above-said applications was given to him, even though he had entered appearance in the case long ago & was actively contesting the appeal at the prior hearing of arguments. it is a wholesome practice observed in judicial proceedings that, when any application is made in a pending case in which other parties have entered appearance by counsel, notice of such application be given at least to the parties who have entered appearance in the case, by service of copies of the application on the counsel or by the issue of a formal notice through the process of court. it may be that an application may.....
Judgment:
ORDER

M. Madhavan Nair, J.

1. This is an application filed by the 18th respondent to transpose him as the supplemental appellant in this Second Appeal.

2. The Second Appeal was preferred by the 2nd defendant alone in his capacity as the karanavan of the thavazhi of defendants 1 to 36. He died on 15-8-1959. Before his death, the arguments on the Second Appeal were fully heard and the case was reserved for judgment. But, the learned Judge who heard the case did not pronounce the judgment, and has retired. The case was, therefore, reposted for hearing of arguments; and then the fact of the death of the sole appellant in the case was brought to the notice of the court.

The 18th respondent, being the successor in office of karnavanship in the thavazhi of defendants 1 to 36, applied on 22-6-1980, by C. M. P. No. 2877 of 1960, to record him as the legal representative of the deceased appellant in the Second Appeal. There were 82 respondents in the Second Appeal. Therefore, the 18th respondent has impleaded respondents numbers 1 to 17 and 19 to 82 as respondents to the said application for recording him as the legal representative of the appellant. The same day, i, e., on 22-6-1960, be had also filed the instant application (C. M. P. No. 2878 of 1960) to transpose him as supplemental appellant in the Second Appeal.

3. On the application for recording the 18th respondent as legal representative (viz., C. M. P. No. 2877 of 1960), it was ordered: 'Notice to the proposed party.' As the 'proposed party' was the applicant himself, no notice was issued in the matter; and ultimately, on 17-8-1960 the application was 'ordered' with the direction that the contemporaneous application for transposition (viz., C.M.P. No. 2878 of 1960), would be posted along with the Second Appeal for disposal. It is in these circumstances that this application has now come up for disposal before me.

4. Shri Achuthan Nambiar, the learned counsel for some of the respondents in this case, submitted that no notice of either of the above-said applications was given to him, even though he had entered appearance in the case long ago & was actively contesting the appeal at the prior hearing of arguments. It is a wholesome practice observed in judicial proceedings that, when any application is made in a pending case in which other parties have entered appearance by counsel, notice of such application be given at least to the parties who have entered appearance in the case, by service of copies of the application on the counsel or by the issue of a formal notice through the process Of court.

It may be that an application may relate to a matter in which such other parties may not be interested; but the fact whether they are interested in the matter or not can be known only when they are intimated what the matter involved in the application is. The practice of moving interlocutory applications without notice at least to the parties who have entered appearance in the case has therefore, to be deprecated. It will cause much anxiety to the parties, and also tend to inconvenience and delay the disposal of the applications by the court.

When the attention of the learned counsel for the applicant was called to the above aspects, he excused himself by saying that the non-issue of a copy of the application even to the other counsel appearing in the case came to he because the court ordered notice to be given to the 'proposed party' only, who in this case was the applicant himself' and no other at all, and that no notice was ordered in C. M. P. No. 2878 of 1960 which was only directed to 'be posted along with C. M. P. 2877 for final orders'.

I am sure the blame for not ordering notice on the applications cannot be thrown on the court. If the fact that the party proposed to be impleaded or recorded as the legal representative of the deceased sole appellant was the applicant himself, was brought to the notice of the learned Judge, the order 'notice to the proposed party' would not have been made on the application.

5. The learned counsel for the respondents submitted that the matter involved in the said applications was not a simple or formal one and eon-tended that when a sole appellant died and no legal representative was impleaded in his place, the appeal abated, and thereafter no transposition oE any respondent as supplemental appellant can be ordered as there was no appeal then Pending in the eye of law. Thus contention is supported by the rulings in Thakur v. Mst. Maida Kuar, AIR 1954 All 305, and Santoolal v. Champalal, AIR 1934 Nag 165. The learned counsel for the petitioner stated that there are rulings to the contra as well, though he did not cite any particular ruling to my notice.

6. A further ground was also taken by the learned counsel for the applicant that the appeal here cannot be said to have abated as the heaving of arguments in the case was concluded once, and it was for no fault of his that the judgment was not pronounced in time. This contention was based on the provisions of Order XXII Rule 6 C. P. C. It, no doubt, provides :

'There shall be no abatement by reason of death of either party between the conclusion of the hearing and the pronouncement of the judgment. ....'

The contention based on this provision is that once the hearing of arguments in the case was concluded, thereafter there cannot be any abatement in the suit, and a reposting of the case for a further hoaring of arguments does not and cannot alter the position. 'Hearing' as used in the Code of Civil Procedure, does not mean the 'hearing of arguments' only.

It refers to all the stages of the trial of a suit, naraely, the settling of issues, taking of evidence and hearing of arguments or 'other proceedings tending to a final adjudication of the suit'. It may not refer to matters connected with the disposal of interlocutory proceedings in the course of the suit; but it includes all proceedings which lead to the disposal or decision of the suit as such.See the observations of the Judicial Committee of the Privy Council in Lachmi Naniyan v. Balmukund, AIR 1924 PC 198 at p. 199 and also the dictum in Manohar Days v. Birandari Sheikhupurain, AIR 1936 Lah 280. When arguments on the case had once been heard, but that did not culminate in the pronouncement of a judgment, and the case was again posted for fresh hearing of arguments, it cannot be said that the hearing of the case has been concluded.

If any step for a final adjudication of the suit is pending in a case, the 'hearing' of that case in the connotation of that expression in the Code of Civil Procedure, has not been concluded. In this view the contention of the learned counsel for the petitioner, based on Order XXII Rule 6, C. P. C. cannot be accepted.

7. In Kehr Singh v. Chanda Singh, AIR 1936 Lah 578 where after the full hearing of the arguments on the case and before the pronouncementof the judgment, the court made a local inspection of the site in suit and took measurements of the land with the help of revenue records and made a reference of those facts in the judgment, it was held that it could not be said that the 'hearing' of the case was concluded on the date when the hearing of arguments in the case was over.

That was so, because there were further proceedings in the ease which also tended or contributed to the final adjudication of the case. It was further held in that case that the death of a party alter the closure of the hearing and before the pronouncement of the judgment was in the circumstances stated above not covered by the provisions of Order XXII Rule 6, C. P. C. and therefore the suit, with regard to the particular party who died in the meanwhile, was held to have abated.

8. However, no question of abatement can be taken up now in this case; because, the application for recording the legal representative of the deceased appellant stands ordered by a learned Judge of this Court and there is no petition for a review of that order. Only the question of transposition of the 18th respondent who has been already recorded as the legal representative of the appellant remains for disposal.

The transposition of the respondent to themay of the appellant is a very formal matter in the present circumstances of this case; and therefore I do not propose to enter into the merits of this application as such; and would simply allow the same. C. M. P. No, 2878 of 1960 is therefore allowed and the applicant, the 18th respondent, will he transposed as the supplemental appellant, as prayed for.

9. The Second Appeal, being a very old one (instituted in 1954) will be posted for hearing of arguments on 29-8-1960.


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