IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P. JOSEPH WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 OP(C).No. 3630 of 2011(O) ------------------------- OS.640/2005 OF FIRST ADDITIONAL SUB COURT, THRISSUR .................... PETITIONER: ------------------- N. ARUMUGHAN, S/O. LATE K NACHIMUTHU CHETTIAR, KNC NIVAS, MANALATH LANE, THRISSUR. BY ADV. SRI.C.AJITH KUMAR RESPONDENT(S): ----------------------- 1. V.K.V.NADARAJ, S/O. VELLACHAMI CHETTIAR, THIRUPPUR ROAD,UDUMALPETTA VILLAGE AND TALUK,KOVAI DISTRICT,TAMILNADU-641048. 2. N. SUBHAMMAL, W/O. NACHIMUTHU CHETTIAR, GOPPANNUR PUTHUR KAPLANGARAI POST POLLACHI, COIMBATORE, TAMIL NADU-641658. 3. N. THANKAVELU, S/O. LATE K.NACHIMUTHU CHETTIAR, KNC. NIVAS, MANALATH LANE, THRISSUR-6800 38. 4. N.R. ALAMELU, D/O. LATE K.NACHIMUTHU CHETTIAR, W/O. PRK RAMASWAMI, GOPANNUR PUTHUR KAPLANGARAI POST, POLLACHI, COIMBATORE, TAMIL NADU-641658. 5. N. SUNDARAMBAL, D/O. LATE K.NACHIMUTHU CHETTIAR, W/O. G.V. RANGARAJ, PUTHUR ROAD, KOZHINJAMBARA, PALAKKAD DISTRICT-678021. 6. T. PARVATHY, D/O. LATE K.NACHIMUTHU CHETTIAR, W/O. THIRUVENKITAN SEREENIVAS MALLAYA ROAD, ERNAKULAM-682030. 7. G. BAGYALAKSHMI, D/O. LATE K.NACHIMUTHU CHETTIAR, W/O. P.GANESH, C/O. SWAMI JEWELLERY, N.N.P.PETTA, DHARAPURAM, THRIPPUR, TAMILNADU-641348. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SCL. OP(C).No. 3630 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1:- TRUE COPY OF PLAINT IN O.S. NO.640/2005 ON THE FILES OF SUB COURT, THRISSUR. EXT.P2:- TRUE COPY OF THE AGREEMENT FOR SALE DATED 20-12-1996 PRODUCED ALONG WITH EXT.P1 PLAINT. EXT.P3: TRUE COPY OF WRITTEN STATEMENT FILED TO EXT.P1 PLAINT. EXT.P4: TRUE COPY OF THE POWER OF ATTORNEY NO. 105/1971 DATED 22-05-1971 OF THRISSUR SUB REGISTRY. EXT.P5: TRUE COPY OF THE IMPLEADING PETITION FILED BY THE 1ST RESPONDENT O.S.NO. 640/2005 OF SUB COURT, THRISSUR. EXT.P6: TRUE COPY OF AMENDMENT PETITION FILED BY THE 1ST RESPONDENT IN O.S. NO.640/2005 OF SUB COURT THRISSUR. EXT.P7: TRUE COPY OF THE PETITION TO SET ASIDE THE ABATMENT FILED BY 1ST RESPONDENT IN O.S. 640/2005 OF SUB COURT, THRISSUR. EXT.P8: TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO EXT.P7 PETITION. EXT.P9: TRUE COPY OF THE PETITION TO CONDONE THE DELAY IN FILING EXT.P5 PETITION BY 1ST RESPONDENT. EXT.P10: TRUE COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENTSTO EXT.P9 PETITION. EXT.P11: CERTIFIED COPY OF THE COMMON ORDER DATED 02/09/2011 PASSED ON EXT. P5, P6, P7 AND P9 PETITION BY THE SUB COURT, THRISSUR. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// PA TO JUDGE SCL. THOMAS P. JOSEPH, J. ---------------------------------------- O.P.(C) No. 3630 OF 2011 ------------------------------------------ Dated this the 9th day of November, 2011. J U D G M E N T Petitioner is the additional second defendant in O.S. No.640 of 2005 of the court of learned 1st Additional Sub Judge, Thrissur. That is a suit filed by the 1st respondent for specific performance of an agreement for sale dated 20-12-1996 allegedly executed between the first respondent and the deceased first defendant. Deceased first defendant was represented by his power of attorney holder (one of his sons). During pendency of the suit, petitioner who is another son of the deceased first defendant was impleaded as additional second defendant as per Order on I.A No.3886/2006. Petitioner and the deceased first defendant filed joint written statement (Ext.P3) denying the plaint claim. While so, the first defendant died on 21-07-2008 and that fact was reported in court, according to the petitioner on 31.7.2008. First respondent did not take steps on time to implead the other legal heirs of deceased first defendant. According to the petitioner, time for impleadment expired by 29.10.2008 and the time to set aside abatement expired on 28.12.2008. But Ext. P5 application for impleadment and Ext. P6, application for amendment were filed only on 05-03-2009, followed by Ext.P7, application to set aside abatement on 01-07-.2010 and Ext.P9, application to condone the delay (in setting aside abatement) filed on 03-07-2010. Petitioner resisted the application, but learned Sub Judge by Ext. P11, Order O.P.(C) No. 3630 OF 2011 2 allowed the applications and brought the remaining legal heirs of deceased first defendant also on record. That Order is under challenge at the instance of petitioner/additional second defendant. 2. Learned counsel for petitioner would contend that the suit abated on there being no request for impleadment within the time prescribed and that the principle that when one of the legal heirs of the deceased is on record in any capacity the question of abatement does not arise or applicable only as regards the deceased first defendant. According to the learned counsel, the suit stands abated as against the legal representative who are not brought on record on time. Learned counsel has placed reliance on the decision in Balwant Singh (Dead) V. Jagdish Singh and ors. (AIR 2010 SC 3043). 3. I am unable to accept the interpretation which learned counsel has given. Rule 4(3) of Order XXII of the Code of Civil Procedure (for short 'the Code') deals with abatement of suit against the deceased defendant. As per Rule 4 of Order XXII, such a situation would arise only when the right to sue does not survive. Here, on the facts it could not be said that the right to sue did not survive against legal representatives of deceased first defendant. For, respondent is claiming specific performance of an agreement for sale allegedly executed by the deceased first defendant in respect of the property belonging to him. It cannot O.P.(C) No. 3630 OF 2011 3 be disputed that on the death of the first defendant, the property in question will be taken by his legal heirs by the law of inheritance or in any other manner as provided under law. Therefore on the death of the first defendant, the right to sue survived. 4. The decision in Balwant Singh (Dead) V. Jagdish Singh and ors. (AIR 2010 SC 3043) did not relate to a case of this nature. In the present case, it is admitted that even when the first defendant alive, petitioner who is the son of the first defendant was brought on record as additional second defendant and he, along with the deceased first defendant filed Ext.P3, joint written statement. It is the settled position of law that when anyone of the representative of the deceased is on record in any capacity, the question of abatement does not arise and as I understand, abatement is with respect to the deceased first defendant or the plaintiff as the case may be. 5. In Mohd. Hussain V. Gopibhai [2008 (2) KLT S.N. 4 (Case No.4) SC], the Supreme Court has stated that when some of the legal heirs or legal representatives (of the deceased party) are already on record, question of abatement does not arise. As such the contention that on the expiry of the time provided for impleadment there is an abatement of the suit cannot be accepted. Even otherwise, when an application for impleadment is made, it involves setting O.P.(C) No. 3630 OF 2011 4 aside the abatement and condoning the delay also. What is needed is that sufficient facts to set aside the abatement and condone the delay must be stated. 6. In the present case, though separately applications were filed for impleadment, consequential amendment, setting aside the abatement and condone the delay and those applications were allowed by the learned Sub Judge by Ext.P11 order. I do not find any legal infirmity or jurisdictional error committed by the learned Sub Judge in passing Ext.P11, order so that this court is required to exercise the supervisory jurisdiction under Article 227 of the Constitution. Original Petition is dismissed. THOMAS P. JOSEPH, JUDGE. Scl.