IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 RP.No. 100 of 2011() -------------------- AGAINST THE JUDGEMENT/ORDER IN AS.230/2000 Dated 02/07/2010 .................... REVIEW PETITIONER(S): RESPONDENTS: -------------------------------------------------------------- 1. K.SHAHUL HAMEED, S/O.KASIMKUNJU, MINI NIVAS, NADUVILAKKARA CHERRY, MAYYANAD VILLAGE, KOLLAM. 2. ABDUL KHADER, ANIZHA MANZIL, THAZHUTHALA CHERRY, ADICHANALLOOR VILLAGE. BY ADV. SRI.K.SUBASH CHANDRA BOSE RESPONDENT(S): APPELLANTS& RESPONDENTS 3 TO 7: -------------------------------------------------------------------------------------- 1. SHERIFA BEEVI, D/O.AISHA BEEVI, KUNJUMOOTTIL VEEDU, THATTAMALA, KOLLAM - 691 306. 2. BATHISHA WRONGLY SHOWN IN THE IMPUGNED DECREE AND JUDGMENT AS FATHIMA BEEVI, D/O.AISHA BEEVI,NEW KAPPIL HOUSE, OYOOR P.O., KOTTARAKKARA - 691 329. 3. KHADIJA BEEVI, D/O.AISHA BEEVI,PUTHEN VEEDU, KOTTIYAM-693 29. 4. AISHA BEEVI, (DIED), W/O.KASIMKUNJU, KOTTIYAM PUTHEN VEEDU, NADUVILAKKARA CHERRY, MAYYANAD VILLAGE, KOLLAM-691 503. 5. ABDUL AZEEZ OF DO. DO. (DIED). 6. KUNJU PATHUMMA BEEVI (DIED), D/O.AISHA BEEVI, PATTANTAZHIKAM, UMAYANALLOOR, MAYYANAD KOLLAM - 691 503. 7. ALIYARKUNJU, S/O.KASIMKUNJU, CHATHANPARA WEST, PANDALAM MUKKU, MAMOODU, KOLLAM - 691 529. 8. ABDUL SAMAD, (DIED), S/O.LATE KASSIM KUNJU, DO. DO. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 16/02/2011 ALONW WITH RP.NO.101 OF 2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss HARUN-UL-RASHID,J. ------------------------------- R.P. NO. 100 OF 2011 IN A.S.NO.230 OF 2000 & R.P.NO. 101 OF 2011 IN A.S.NO.229 OF 2000 ------------------------------- DATED THIS THE 16TH DAY OF FEBRUARY, 2011 O R D E R R.P.No.100/2011 is filed by respondents 1 and 2 in A.S.No.230/2000, who are the defendants in O.S.No.391/94 on the file of the Principal Sub Court, Kollam. The connected R.P.No.101/2011 is filed by the lst respondent in A.S.No.229/2000, who is the plaintiff in O.S.No.315/93 on the file of the same court. This Court by common judgment dated 2/7/2010 disposed of the above appeals on merits. This Court allowed A.S.No.229/2000 and set aside the judgment and decree passed by the trial court in O.S.No.315/93 and dismissed the suit. The connected appeal A.S.No.230/2000 is also allowed remanding O.S.No.391/94 to the trial court for fresh consideration after setting aside the judgment and decree passed in the suit. 2. The learned counsel for the petitioners raised two -2- R.P.Nos.100 & 101/2011 grounds at the admission stage. The learned counsel submits that respondents 2, 3, 4 and 6 in the appeals died during the pendency of the suit, that the cause of action in the appeal is indivisible and since the leagal heirs are not impleaded, the appeal is abated in toto. 3. The parties are near relatives. Respondent 2, 3, 4 and 6 in the appeal died on different dates. The appeals are of the year 2000 and the same were disposed of only in 2010. At the time of admission of the appeals this Court issued notice to the aforesaid deceased respondents. Though notice was served, they did not enter appearance and contest the case. The learned counsel for the respondents brought to the notice of this Court Order XXII Rule 4(4) of the C.P.C. Sub Clause 4 of Order XXII Rule 4 mandates that whenever the Court thinks fit, exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant, who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit. This provision is applicable to the appeals as per Rule 11 of Order XXII C.P.C. Since the respondents are not contesting respondents, there is no necessity to implead the legal heirs. It is seen that the present -3- R.P.Nos.100 & 101/2011 review petitioners have not taken any such contention stating that the appeals are abated in toto during the pendency of the appeals till the same were disposed of. The ground urged is without any merit and therefore repelled. 4. The 2nd ground urged by the learned counsel for the appellants is against the remand in O.S.No.391/94. The said suit was remanded for ascertaining whether the property transferred under Exts.B1 and B2 is the subject matter under Exts.B4 and A1. The learned counsel submits that this Court failed to refer to the pre-existing title under Ext.B2 in Exts.B4 and A1 and that it is an error apparent on the face of the record warranting review of the judgment. This Court referred to the contentions, evidence, facts and other circumstances in the common judgment. The question now raised is touching the merits of the case and is not a ground for reviewing the judgment. Review Petitions fail and accordingly dismissed. HARUN-UL-RASHID, Judge. kcv. -4- R.P.Nos.100 & 101/2011