IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 WP(C).No. 7279 of 2009(O) ------------------------- AS.61/1996 of SUB COURT,KOTTARAKKARA .................... PETITIONER(S): ------------------------- PADMANABHA PILLAI JANARDHANAN PILLAI, GEETHA BHAVAN, KIZHAKKEKARA, NEAR GIRLS HIGH SCHOOL, KOTTARAKKARA. BY MR.N.NANDAKUMARA MENON, SENIOR ADVOCATE, MR.P.K.MANOJKUMAR, SMT.SUSHYA RAJAN. RESPONDENT(S): ---------------------------- 1. OMANAKUTTAN PILLAI, ANANDA BHAVANAM, CHERUPOIKA MURI, PAVITHRESWARAM VILLAGE, KOTTARAKKARA TALUK. 2. PADMANABHA PILLAI RAMAKRISHNA PILLAI, ANANDA BHAVAN, CHERUPOIKA MURI, PAVITHRESWARAM VILLAGE, KOTTARAKKARA TALUK. 3. RADHAKRISHNA PILLAI, ANANDA BHAVANAM, CHERUPOIKA MURI, PAVITHRESWARAM VILLAGE, KOTTARAKKARA. 4. SARASWATHY AMMA REMADEVI AMMA, RESIDES AT MANNOOR, PADINJATTETHIL VEEDU, MUTHUPILAKKADU, SASTHAM COTTA VILLAGE, KUNNATHOOR VILLAGE. Kss .2/- ...2..... WPC.NO.7279/2009 O 5. SARASWATHY AMMA RADHAMONY, RESIDES AT ANANDA BHAVAN, CHERUPOIKA MURI, PAVITHRESWARAM VILLAGE, KOTTARAKKARA TALUK. 6. BHAGEERATHY AMMA, D/O.OMMINI AMMA, CHENNILAVETIL VEEDU, CHERUPOIKA MURI, CHERUPOIKA P.O., PAVITHRESWARAM VILLAGE, KOTTARAKKARA TALUK. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/09/2009 ALONG WITH WPC NO. 9517 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.7279/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE JUDGMENT DTD. 24/02/1996 IN O.S.NO.228/93 IN THE COURT OF THE MUNSIFF OF KOTTARAKKARA. P2: COPY OF THE APPLICATION DTD. 17/09/2004 IN AS.NO.61/1996 IN I.A.NO. 1283/04 SUBMITTED BY THE PETITIONER BEFORE THE COURT OF THE SUBORDINATE JUDGE, KOTTARAKKARA. P3: COPY OF THE ORDER DTD. 3/12/2008 IN I.A.NO.1283/04 IN AS.61/96 PASSED BY THE COURT OF THE SUBORDINATE JUDGE, KOTTARAKKARA. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).Nos.7279 & 9517 of 2009 - O --------------------------------- Dated this the 30th day of September, 2009 J U D G M E N T These two writ petitions are filed by the second defendant in O.S.No.228 of 1993 on the file of the Munsiff Court, Kottarakkara. The above suit was one for partition and injunction. A preliminary decree was passed in favour of the plaintiffs which is now under challenge in appeal, numbered as A.S.No.61 of 1996, filed by the second defendant before the Sub Court, Kottarakkara. One of the main issues involved in the suit is whether the second plaintiff and defendants 3 to 5 and one Ambika Devi are the children of the first plaintiff out of his wedlock with Saraswathy who passed away on 3.12.1975. Second defendant contended that the first plaintiff was unmarried and the case advanced by the plaintiffs that he had married Saraswathy and defendants 3 to 5 and one Ambika Devi were born out of their wedlock was false. Trial court negativing that objection granted a preliminary decree for partition of the shares in the plaint property to the respective sharers. After filing of the W.P.(C).Nos.7279 & 9517 of 2009 - O 2 appeal, the first plaintiff passed away. Petitioner/second defendant moved an application for substituting him and the brothers of the first plaintiff as his legal representatives, and the second plaintiff moved an application for his impleadment and also the defendants 3 to 5 as legal heirs. The court below after hearing both sides allowed the application moved by the second plaintiff and dismissed that of the second defendant/appellant. Propriety and correctness of the orders passed in the respective application allowing substitution of the legal representatives in respect of the deceased first plaintiff in the manner indicated above is challenged in these two writ petitions. 2. I heard the counsel on both sides. 3. Learned counsel for the petitioner submitted that the court below without adverting to the case canvassed by the petitioner and also the additional evidence tendered in the appeal on the question involved, passed impugned orders stating that the first plaintiff had married deceased Saraswathy and five children were born in the wedlock. Materials tendered were not appreciated by the court below in passing the impugned orders is W.P.(C).Nos.7279 & 9517 of 2009 - O 3 the grievance canvassed by the counsel. The issue as to whether the first plaintiff had married late Saraswathy and five children were born out of their wedlock was adjudicated upon in the suit and a finding thereon had been entered into which is under challenge in the appeal. So far as the impleadment of legal representatives under Order XXII Rule 5 of the Code of Civil Procedure, it need only be stated that what is contemplated is only substitution in the place of the deceased person so as to continue the proceedings. No decision is taken with finality on the status of any of the parties in the proceedings. Substantive right of the party with respect to their rights cannot be decided in a proceeding under order XXII Rule 4 and 5 of the Code of Civil Procedure. So much so, the impleadment of the second plaintiff and defendants 2 to 5 in the light of the finding entered on the disputed question involved in the suit by the court below cannot be found fault with. Such substitution would not cause any prejudice to the appellant in canvassing his challenges on the merits of the appeal disputing the status of the second plaintiff and also defendants 3 to 5 as children of the first plaintiff born W.P.(C).Nos.7279 & 9517 of 2009 - O 4 out of his wedlock with late Saraswathy or even the legality of that marriage between the plaintiff and Saraswathy. Impleadment of the legal representatives in appeal as already indicated amounts only substitution in the place of the deceased party for continuation of the proceedings. So much so, no interference with the orders passed by the court below is called for in these writ petitions. Subject to the above observation, the writ petitions are closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-