IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 OP(C).No. 2434 of 2011(O) ---------------------------------- OS.236/2009 of ADDL.M.C.,TRIVANDRUM .................... PETITIONER/PLAINTIFF:- -------------------------------------- V.SIVARAJAN, S/O.VELAYUDHAN NADAR, KALIYAL VEEDU, PALAPOORU, VELLAYANI, THIRUVANANTHAPURAM. BY ADVS. SRI.L.MOHANAN SMT.LIGEY ANTONY RESPONDENTS : - -------------------------- 1. JOSE SAMMUEL, S/O.SAMMUEL, T.C.13/1282 LMS COMPOUND, KANNAMOOLA, THIRUVANANTHAPURAM - 691 018. 2. B.S.LALITHAMBIKA, D/O.SARADHA DEVI, T.C.13/1282 LMS COMPOUND, KANNAMOOLA, THIRUVANANTHAPURAM - 691 018. R1 & R2 BY ADVS. SRI.POOVAPPALLY M.RAMACHANDRAN NAIR SRI.R.V.ABHISHEK THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 28/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 2434 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT P1 : COPY OF THE PLAINT IN O.S 236/2009 ON THE FILE OF THE ADDITIONAL MUNSIFF'S COURT (RCC), THIRUVANANTHAPURAM. EXT P2 : COPY OF IA. 4559 / 2010 IN O.S. 236 / 2009. EXT P3 : COPY OF THE MEMO FILED BY THE PETITIONER. EXT P4 : COPY OF THE OBJECTION TO IA. 4559 / 2010. EXT P5 : COPY OF THE ORDER DATED 21.03.2011 IN IA. 4559 / 2010 IN O.S. 236/2009. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.A. TO JUDGE DMR/- THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2434 of 2011 ==================================== Dated this the 28th day of October, 2011 J U D G M E N T Exhibit P5, order passed by the learned Additional Munsiff, Thiruvananthapuram on 21.03.2011 on I.A. No.4559 of 2010 in O.S. No.236 of 2009 dismissing the application to record one of the defendants as legal heir of the decreased first defendant and to implead other legal heirs is under challenge. 2. Petitioner filed the suit against defendants 1 to 3 for a decree for prohibitory injunction against their trespassing into the suit property. Defendants 1 to 3 filed written statement making a claim over the suit property. While so the first defendant died on 10.03.2010. Petitioner filed Ext.P2, application to record third defendant as one of the legal heirs of the deceased first defendant and to implead his other legal heirs. Learned counsel tells me that initially that application was allowed and summons was issued to additional defendants 4 to 7. While so, the additional 4th defendant (wife of deceased first defendant) died and thereon petitioner filed Ext.P3, memo to record third defendant and additional defendants 5 to 7 (being the children of additional 4th defendant) as her legal heirs. To that memo, the additional 5th defendant filed Ext.P4, O.P(C) No.2434 of 2011 -: 2 :- objection contending that the application for impleadment is not filed within the prescribed time, the suit has already abated and there is no prayer to set aside the abatement. That objection weighed with the learned Munsiff and the application was dismissed as per Ext.P5, order. 3. Learned counsel for petitioner contends that since the third defendant who is the daughter of deceased first defendant was already on record in the suit at the time first defendant died on 10.03.2010 the question of abatement does not arise and learned Munsiff was not correct in holding otherwise. 4. Learned counsel for additional defendants (contesting respondents herein) would contend that since the suit is merely for injunction, the question of impleadment of additional defendants without a separate cause of action as against them does not arise. Hence the impleadment of additional defendants does not arise. 5. The legal position is settled that when one of the legal heirs is on record in the suit in whatever capacity it be, question of abatement does not arise. If authority is required, it is contained in Thoma Varkey v. Krishna Iyer (AIR 1981 Kerala 228) and Mohd. Hussain v. Gopibhai (2008 [2] O.P(C) No.2434 of 2011 -: 3 :- KLT SN 4 [Case No.4] SC). Admittedly, the first defendant died when his daughter (third defendant) who along with first defendant had filed a joint written statement making a claim over the property was on record. I must also bear in mind that Ext.P2, application was to record the third defendant as one the legal heirs while seeking impleadment of additional defendants 4 to 7. 6. So far as the contentions raised by learned counsel for respondent is concerned, it is not disputed that additional defendants are claiming right under the deceased first defendant and by virtue of that claim they are making a claim over the suit property as well. If that be so it is open to the petitioner to implead the legal heirs of deceased first defendant who are thus making claim over the property and proceed against them as well. The right to sue survived so far as the petitioner is concerned. 7. Yet another contention advanced by respondents is that since Ext.P2, application was filed on 01.07.2010 and the suit was by then abated, without an application to set aside the abatement Ext.P2, application by itself is not maintainable and at any rate not proper. O.P(C) No.2434 of 2011 -: 4 :- 8. I have already found that when one of the legal heirs is on record in whatever capacity it be, question of abatement does not arise and that the right to sue against legal heirs survived. Even without an application to set aside the abatement or to condone delay in filing the application, it is open to the court to implead the legal heirs since question of impleadment would arise only after setting aside the abatement and condoning the delay. What is required is only that there must be sufficient materials on record to condone the delay and set aside the abatement. Since abatement does not arise these questions are only of academic interest. In the light of what I have stated above the impugned order cannot be sustained. Original Petition is allowed. Exhibit P5, order is set aside and Ext.P2, application will stand allowed. Third defendant and additional defendants 5 to 7 are recorded as legal heirs of deceased additional 4th defendant. THOMAS P. JOSEPH, JUDGE. vsv