IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 RP.No. 592 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.12044/2007 Dated 31/03/2009 .................... REVIEW PETITIONER(S): --------------------------------------- P.N.ANANDAN, S/O LATE SANKU NARAYANAN, KURISINAL HOUSE, AROOR P.O. CHERTHALA, ALAPPUZHA DISTRICT. BY ADVS.MR.N.RAGHURAJ SMT.K.AMMINIKUTTY RESPONDENT(S): ----------------------- 1. DAMODARAN, NALUTHENGUTHARA, VATTACHIRA, NADUVATHU NAGAR, AROOKUTTY VILLAGE, CHERTHALA TALUK. 2. DIRECTOR OF FISHERIES, DIRECTORATE OF FISHERIES, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF FISHERIES, FISHERIES DEPUTY DIRECTOR'S OFFICE, ALAPPUZHA. 4. SUB INSPECTOR OF FISHERIES, THEVARVATTOM, CHERTHALA, ALAPPUZHA DISTRICT. 5. SANKU NARAYANAN(EXPIRED) POTHENKADAVIL HOUSE, AROOR DESOM AROOR VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. BY GOVT. PLEADER MR.P.K.BABU FOR R2 TO R4 BY ADV. MR.M.S.UNNIKRISHNAN THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 26/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: (C.R.) P.R. RAMACHANDRA MENON, J. ........................................................................ R.P.No. 592 OF 2009 IN W.P.(C) No. 12044 OF 2007 ......................................................................... Dated this the 26 th June, 2009 O R D E R Whether the death of a defendent/respondent to a proceeding will make the judgment passed without knowing the same, a nullity in all cases, is the point for consideration. 2. The Review Petition has been filed by the son of the fourth respondent in the Writ Petition stating that, the judgment passed by this Court on 31.03.2009 suffers from material errors apparent on the face of the records, particularly in view of the fact that the fourth respondent therein, at the time of passing the judgment was not alive and that the death of the said respondent which took place on 08.08.2008 was not brought to the notice of this Court by the Writ Petitioner and hence that the judgment is a nullity. 3. As per the judgment, the impugned order therein (i.e., Ext.P10) was set aside and the concerned respondents were R.P.No. 592 OF 2009 IN W.P.(C) No. 12044 OF 2007 2 directed to cause the 'Chinese Net' to be shifted to the appropriate place as shown in Ext.P8 Sketch prepared by the departmental authorities pursuant to Ext.P7 judgment passed by this Court . The learned Counsel for the Review Petitioner submits that, the judgment having been passed after the death of the fourth respondent, cannot have any consequence and that the Review petitioner who is stated as the beneficiary of Ext. P10 order dated 29.12.2006, by virtue of the consent agreement to operate the 'Chinese Net' stated as executed by his deceased father (vide Annexure A1 dated 27.11.2006) is very much entitled to step into the shoes of the deceased and contest the matter. It is also pointed out that the matter has to be adjudicated afresh, after impleading all the legal heirs in the party array. 4. Heard the matter at length, particularly on the legal issue, since nothing has been brought on record in the Review Petition as to the merits of the case involved and further when the learned counsel submitted that the arguments are confined only to the legal issue involved particularly as to the R.P.No. 592 OF 2009 IN W.P.(C) No. 12044 OF 2007 3 sustainability of the judgment passed by this Court. 5. Before proceeding to the legal issue, it is very much necessary to brush up the sequence of events. The 4th respondent in the Writ Petition was granted Ext.P2 licence to install a 'Chinese Net' in the particular place and location as stipulated therein. The 4th respondent in fact installed the 'Net' elsewhere; which allegedly caused serious loss, hardships and prejudice to the rights and interests of the Writ petitioner, who challenged the same, which led to Ext.P6 issued by the second respondent, whereby the 4th respondent was directed to remove the 'Chinese Net' from where it was installed, to be shifted to the appropriate place as shown in Ext.P2 licence. 6. Aggrieved by Ext.P6 , the 4th respondent challenged the same by filing O.P. 36721 of 2003, which led to Ext. P7 judgment; whereby this Court arrived at a finding that the Chinese Net could be installed only at the particular place where it was permitted to be installed as per Ext.P2 and accordingly, necessary measurement was ordered to be effected by the concerned authorities and the Director of Fisheries was R.P.No. 592 OF 2009 IN W.P.(C) No. 12044 OF 2007 4 directed to re-consider the matter on the basis of the proper 'Survey Sketch' to be obtained as aforesaid, of course after giving an opportunity of hearing to the parties concerned. 7. Pursuant to the said verdict, the Taluk Surveyor prepared a detailed 'Sketch' pointing out the exact location where the 'Chinese Net' was to be installed by the 4th respondent (i.e., the petitioner in Ext.P7 judgment) as permitted in Ext.P2 licence. Though the said Sketch was made available before the concerned authorities, it was simply given a 'go bye' and the Director of Fisheries passed Ext. P10 order, allegedly in compliance with Ext.P7 judgment, holding that the Chinese Net did not require to be shifted from the existing location. The above order, being very much contrary to Ext.P8 Sketch as well as the clear mandate given by this Court vide Ext. P7 judgment, it was subjected to challenge in W.P.(C) 12044 of 2007 filed by the Writ Petitioner/1st respondent in the Review Petition. 8. The above Writ Petition was admitted by this Court on 09.04.2007 and notice was ordered by Speed Post. Despite service of notice, the 4th respondent did not choose to appear R.P.No. 592 OF 2009 IN W.P.(C) No. 12044 OF 2007 5 and no contest was made with regard to the challenge raised in the Writ Petition. Equally or more so important is the fact to be noted that the 4 th respondent had no challenge against the direction given by this Court earlier in Ext.P7, nor with regard to Ext.P8 sketch prepared by the Taluk Surveyor as directed in Ext.P7. In other words, Ext. P10 order impugned in the Writ Petition was only a 'consequential order', giving effect to Ext.P7 judgment passed by this Court and also in the light of Exy.P8 Sketch. Presumably being aware of the limited scope and extent of contest as above, the 4th respondent in the Writ Petition chose to remain behind the curtain. Finally, when the matter was taken up for final hearing, there was no counter affidavit either from the part of the Government/Department or from the part of the 4th respondent and it was in the said circumstance, that this Court, with specific reference to Ext.P7 judgment and P8 Sketch held that Ext. P10 order passed by the Director of Fisheries was very much contrary to the mandate given by this Court in Ext.P7 judgment, being not in conformity with Ext.P8 Sketch. It was accordingly that Ext.P10 order was set aside and the R.P.No. 592 OF 2009 IN W.P.(C) No. 12044 OF 2007 6 departmental authorities were directed to take all necessary steps to shift the 'Chinese Net' from the existing location, to the exact place where it was to be installed as provided in Ext.P8 Sketch, as directed by this Court in Ext.P7 judgment. 9. The Review petitioner has now put up a contention that the father of the Review petitioner was of 90 years of age and bed ridden and that he could not engage any lawyer or file any counter affidavit, despite receipt of notice sent from this Court. It is further pointed out that, by virtue of Annexure - A1, stated as executed by the deceased father, the Review petitioner was operating the 'Chinese Net' and he, being the sole beneficiary, is very much aggrieved of the judgment passed by this Court without hearing the actually aggrieved party (particularly since the father/4th respondent in the Writ Petition was no more) 10. The learned Counsel for the Review petitioner asserts that the judgment passed by this Court on 31.03.2009 is a 'nullity', in view of the fact that the 4th respondent had already bid farewell to this world by that time. The learned Counsel also R.P.No. 592 OF 2009 IN W.P.(C) No. 12044 OF 2007 7 placed reliance on the decisions rendered by this Court in Meenakshy Pillayathiri Amma vs. Lakshmi [1967 KLT 777], Paru v. Devaki Varassiar [1992(2) KLT 687], Uma Andarjanam v. Neelakandan Namboodiri (2001(2) KLT S.N. 14, Case No.16) and also by the Apex Court in Amba Bai and others vs. Gopal and others [(2001) 5 SCC 570] and in Jaladi Suguna vs. Satya Sai Central Trust and others [(2008) 8 SCC 521]. It is relevant to note that the factual circumstances as discussed in the above cases are quite dissimilar with the position involved in the present case; as discussed below: 11. In 1967 KLT 777 , the decision rendered was referring to the rule position prevailing as on that date. It was much after the pronouncement of the above verdict, that the C.P.C. was amended, whereby sub rule (4) was inserted under Order XXII Rule 4, w.e.f. 01.02.1977, which is the relevant provision applicable to the case in hand and is extracted below: Sub Rule(4): “ The Court whenever it thinks fit, R.P.No. 592 OF 2009 IN W.P.(C) No. 12044 OF 2007 8 may 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 at the hearing; and judgment may, in such case, be pronounced against the said defendant not withstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place. ” By virtue of the above rule position, it is very much clear that if the defendant, despite service of summons has failed to appear before the Court and contest the suit, the Court is very much at liberty to pronounce the judgment against such defendant, notwithstanding the death of such defendant and it shall have the same force and effect as if the judgment were passed prior to the death. The above rule position was not available when the judgment was passed by this Court in 1967 KLT 777 and hence the said decision is not applicable to the case in hand. 12. In 1992 (2) KLT 687, the trial court had passed the judgment and decree on 28.02.1989, which R.P.No. 592 OF 2009 IN W.P.(C) No. 12044 OF 2007 9 were subjected to challenge by the second defendant in the appeal. During the pendency of the appeal, the appellant/second defendant took his last breath on 08.01.1992. It was without considering the death of the appellant/second defendant, that the verdict was passed by the lower appellate court, which hence was rightly set aside by this Court in the above case. 13. Unlike this, in the present case, the 4th respondent in the Writ Petition, despite service of notice, had not turned up by filing any 'Vakalath' and there was absolutely no contest from his part. The position contemplated as available under sub rule (4) of Rule 4 under Order XXII did not exist in the case involved in 1992 (2) KLT 687. Position is more or less same, with respect to the other decisions cited by the learned counsel and in none of these cases, viz., 2001(2) KLT S.N. 14, Case No. 16, (2001) 5 SCC 570 and (2008) 8 SCC 521, the effect of the amended provision i.e, sub rule (4) to Rule 4 of Order XXII, C.P.C., which came into effect w.e.f. 01.02.1977, was a subject matter of consideration. As such, the above decisions stand entirely on R.P.No. 592 OF 2009 IN W.P.(C) No. 12044 OF 2007 10 a different footing and are not applicable to the present case. 14. Applying the above rule position to the case in hand, there is absolutely no obscurity or ambiguity to conclude that the 4th respondent had taken conscious decision to keep himself away from the proceedings without any contest and as such, it is squarely covered by the principle as available under Sub Rule 4 to Rule 4 of Order XXII of CPC . True, the provisions under the CPC are not applicable to a proceeding under Article 226 of the Constitution of India as stipulated in the 'Explanation' under Section 141 CPC. But the principles cannot be considered as alien, more so when the Kerala High Court Rules are silent as to the procedure for impleading the 'legal heirs' of a deceased party to a Writ Petition and the course open can only be by way of applying the principles under the CPC. 15. The Review petitioner cannot widen the scope of the case, allegedly by stepping into the shoes of the deceased 4th respondent in the Writ Petition, when the 4th respondent himself did not have any case or contest with regard to the issue in hand; more so when the basic issue stood already covered by R.P.No. 592 OF 2009 IN W.P.(C) No. 12044 OF 2007 11 Ext.P7 judgment, whereby it was stipulated that the 'Chinese Net' had to be installed at the particular place based on the Sketch to be prepared by the concerned authority; which alone has been reiterated and ordered to be done as per the judgment dated 31.03.2009. In the above circumstances, there is absolutely no error apparent on the face of the records to sustain the Review ; scope of which power has been vividly explained by the Apex Court in Smt.Meera Bhanja Vs Smt.Nirmala Kumari Choudhury (AIR 1995 SC 455). The Review Petition fails and it is dismissed accordingly. P.R. RAMACHANDRA MENON, JUDGE. lk