IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 CRP.No. 174 of 2009() --------------------- AGAINST THE ORDER DATED 30/07/2008 IN IA 261/08 IN OS.37/2006 of MUSNIFF's COURT,ADOOR .................... REVN. PETITIONERS/COUNTER PETITIONERS:- ----------------------------------------------------- 1. AMBILIDHARAN NAIR, METHANTE AYYATHU VILAYIL, KALANJOOR MURI, KALANJOOR VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT. 2. NANU NAIR VASUDEVAN NAIR, METHANTE AYYATHU VILAYIL, KALANJOOR MURI, KALANJOOR VILLAGE, ADOOR TALUK, PATHANNAMTHITTA DISTRICT. BY ADV. SRI.P.VIJAYAKUMAR SRI.C.R.REGHUNATHAN RESPONDENT/PETITIONER:- -------------------------------- SAHADEVAN NAIR, S/O.RAMAKURUP, KALATHOOR PUTHIYA VEETTIL, KALANJOOR MURI, KALANJOOR VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT. ADV. SRI. D.KISHORE FOR R1 THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. -------------------------------------------------- C.R.P. No. 174 of 2009 ---------------------------------------------------- Dated this the 10th day of February, 2010. ORDER The revision petitioner is the defendant in O.S. No. 37 of 2006 on the file of the Munsiff's Court, Adoor. The said suit was filed by one Narayanan Nair on behalf of his brother (the respondent herein) Sahadevan Nair who was employed at Nagpur. The suit was for fixation of boundary and for consequential injunction. While so, the said Narayanan Nair died on 15.08.2007. On 01.03.2008, the respondent Sahadevan Nair who is the real owner filed I.A No. 261 of 2008 under Order 1 Rule 10 C.P.C to implead him as the additional 2nd plaintiff. The said application was opposed by the revision petitioner contending inter alia that the death of Narayanan Nair was conveniently suppressed, that the suit had abated and the application was filed without seeking to set aside the abatement caused on account of the death of Narayanan Nair and filed beyond C.R.P. No. 174/2010 : 2 : the period of limitation. 2. The court below as per the impugned order dated 30.07.2008 allowed the application holding that the person who sought impleadment was the real owner of the property even according to the plaint averments and that for a proper adjudication of the matters in controversy between the parties, he should be impleaded as the additional 2nd plaintiff. It is the said order which is assailed in this revision. 3. The learned counsel appearing for the revision petitioner raised the following submissions before me in support of the revision:- The suit was not filed by Sahadevan Nair, the respondent herein but was filed by one Narayanan Nair on behalf of Sahadevan Nair. The said plaintiff Narayanan Nair died on 15.08.2007. So, on the expiry of 90 days, the suit abated on 15.11.2007. Hence, on 01.03.2008, the respondent Sahadevan Nair could not have sought his C.R.P. No. 174/2010 : 3 : impleadment as the additional 2nd respondent without getting the abatement set aside and without getting the delay condoned. He had also suppressed the date of death of Narayanan Nair. 4. I cannot agree with the above submissions. It is true that Narayanan Nair was the plaintiff. But he had made it clear in the plaint itself that the suit was filed on behalf of his brother Sahadevan Nair who was employed at Nagpur. So, for all intents and purposes, it was Sahadevan Nair who was the plaintiff. Narayanan Nair who filed the suit on behalf Sahadevan Nair died on 15.08.2007. There cannot be any dispute that even after the death of Narayanan Nair, the cause of action which was available to his brother Sahadevan Nair would continue to be available to him. What was needed was only a substitution. Hence, the court below was not wrong in allowing the application for impleading the real owner Sahadevan Nair as additional 2nd plaintiff notwithstanding the fact that the abatement of C.R.P. No. 174/2010 : 4 : the suit was not got set aside or the delay in setting aside the abatement was not got condoned. I do not find any error of jurisdiction in the impugned order so as to warrant interference under Section 115 C.P.C. This revision is accordingly dismissed. Dated this the 10th day of February, 2010. V. RAMKUMAR, JUDGE. rv C.R.P. No. 174/2010 : 5 : V. RAMKUMAR , J. -------------------------------------------------- C.M. Application No. 176 of 2009 in C.R.P. No. 174 of 2009 ---------------------------------------------------- Dated this the 10th day of February, 2010. ORDER This is a petition to condone the delay of 61 days in filing the revision. Heard both sides. Having regard to the averments in the affidavit in support of the petition, the delay is condoned. Dated this the 10th day of February, 2010. V. RAMKUMAR, JUDGE. rv C.R.P. No. 174/2010 : 6 :