IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 11TH MARCH 2010 / 20TH PHALGUNA 1931 CRP.No. 2776 of 2001() ---------------------- OS.94/1996 of SUB COURT, OTTAPPALAM .................... REVN. PETITIONER(S): --------------------- KUNHUNNI NAIR @ P.V.K.UNNI NAIR, S/O THOTTUR NAIR VEETTIL KUNHIMALU NATHIAR, EZHUMANGAD DESOM, OTTAPALAM TALUK. BY ADV. SRI.K.V.SOHAN RESPONDENT(S): --------------- 1. VIJAYA, W/O SIVASANKARAN, VELLUR PERUMBILAVIL HOUSE, PALAT ROAD, OTTAPALAM, NOW RESIDING AT THEJAS, PONNATH SOUTH ROAD, KOCHI. LEGAL HEIRS OF FIRST DEFENDANT: 2. K.P.HARIDAS, NO.B3, VICTORS ENCLAVE, COLLEGE ROAD, CHUNNAMBUTHARA, PALAKKAD. 3. M.HARIKRISHNAN, S/O HARIDAS, -DO- 4. M.ARJUN KUMAR, S/O HARIDAS, -DO- ADV. SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE FOR R2 & R4 SRI.SANTHEEP ANKARATH FOR R2 & R4 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J ------------------------------------- C.R.P No.2776 OF 2001 -------------------------------- Dated this the 11th day of March 2010 ORDER Revision has been filed by the plaintiff in O.S No.94 of 1996 on the file of Sub Court, Ottapalam. Suit was one for money and it happened to be rejected for the reason of nonpayment of the balance court fee within the time fixed. Plaintiff moved an application for reviewing the order of rejection remitting the balance court fee as well. Pending that application, one among the two defendants, the 1st defendant passed away. An application for impleadment of the legal heirs of that defendant was moved by the plaintiff beyond the prescribed period and therefore a petition was filed to condone the delay for setting aside the abatement. Proposed legal heirs of that defendant on appearance resisted that application by filing objections. The learned Sub Judge after considering the objections raised found merit in the objections canvassed and dismissed the application for impleadment. Propriety and correctness of that order is challenged in the revision. 2. I heard the counsel on both sides. Parties are close relatives and so much so, plaintiff was fully aware of the death of the 1st defendant was the main objection canvassed by the legal heirs of the deceased defendant to claim that the abatement C.R.P No.2776 OF 2001 Page numbers which has come into effect is not liable to be set aside. There was another objection that as per the law of inheritance applicable to the parties, the husband of the 1st defendant was not a legal representative of that defendant. Both these objections were found appealing to the learned Sub Judge with the result the application for impleadment was dismissed. It is not disputed that the 1st and 2nd defendants both of them were represented by the same counsel in the proceedings over the petition filed by the plaintiff seeking review of the order rejecting the plaint. Then the larger question emerges for consideration whether that counsel was duty bound to inform the court in time the death of the party. Order 22 Rule 10(A) of the Code of Civil Procedure makes it abundantly clear that a pleader appearing for a party to the suit has a duty to inform the court the death of the party and for that purpose the contract between the pleader and deceased party shall be deemed to subsist. Admittedly the counsel appearing for the deceased 1st defendant did not report in time before the court the death of that party. Viewed in that background, I find, there was justifiable reason for the plaintiff, whatever be the relationship between the parties, in seeking for setting aside the abatement which occurred by nontaking of steps within time for impleadment of the legal representatives of the 1st respondent for the proceedings. The other objection that whether the husband of C.R.P No.2776 OF 2001 Page numbers the 1st defendant could have been brought in as a legal representative does not depend upon the question whether under the law of inheritance he is a heir or not. Any person who intermeddles the estate of the deceased also come under the definition of a legal representative. That being the position of law, the impugned order passed by the learned Sub Judge cannot be sustained. The order is set aside directing the learned Sub Judge to pass appropriate order taking note of the observations made above and in accordance with law. Revision is disposed as indicated above. Sd/- S.S.SATHEESACHANDRAN JUDGE //TRUE COPY// P.A TO JUDGE vdv