IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 5TH APRIL 2010 / 15TH CHAITHRA 1932 WP(C).No. 6816 of 2004(J) ------------------------- OS.75/1996 of PRL.S.C.,THALASSERY .................... PETITIONER(S): --------------- C.AMBUJAKSHI AMMA, D/O.KRISHNAN NAIR, SREE VIHAR, CHIRAKKARA P.O. THALASSERY, KANNUR DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): --------------- 1. T.MOHAMMED, S/O,.HAMSA, CHOKLI AMSOM, PERINGADI DESOM, PERINGADI P.O. THALASSERY, KANNUR DISTRICT. 2. T.K.FOUZIYA, W/O.MOHAMMED, CHOKLI AMSOM, PERINGADI DESOM,, PERINGADI P.O. THALASSERY, KANNUR DISTRICT. 3. M.K.HAMSA, S/O.ABDUL RAHIMAN, THIRUVANGAD P.O. THALASSERY, KANNUR DISTRICT. 4. KUNHAMMED KOYI, S/O.KOYAMMA, THIRUVANGAD P.O. THALASSERY, KANNUR DISTRICT. ADV. SRI.C.KHALID FOR R1 SRI.N.GOPINATHA PANICKER FOR R1 SRI.R.O.MUHAMED SHEMEEM FOR R1 SRI.T.P.SAJID FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: 1. EXT.P1: TRUE COPY OF THE ORIGINAL SUIT NO.75/1996 DATED FEBRUARY 1996 FILED BY THE PETITIONER'S HUSBAND BEFORE THE SUB COURT, THALASSERY. 2. EXT.P2: TRUE COPY OF THE DEATH CERTIFICATE DATED 13.12.2000 IN O.S NO.75/1996 BEFORE THE SUB COURT, THALASSERY. 3. EXT.P3: TRUE COPY OF THE JUDGMENT DATED 13.12.2000 IN O.S NO.75/1996 BEFORE THE SUB COURT, THALASSERY. 4. EXT.P4: TRUE COPY OF THE REVIEW PETITION DATED 16.1.2001 FILED BY THE PETITIONER BEFORE THE PRL.SUB COURT, THALASSERY. 5. EXT.P5: TRUE COPY OF THE ORDER DATED 30.10.2002 IN I.A NO. 451/2001 IN O.S 75/1996 OF THE SUB COURT, THALASSERY. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A TO JUDGE S.S.SATHEESACHANDRAN, J ------------------------------------- W.P.(C) No.6816 OF 2004 -------------------------------- Dated this the 5th day of April 2010 JUDGMENT Writ petition is filed by the widow of the plaintiff in O.S No.75 of 1996 on the file of Sub Court, Thalassery. Plaintiff in the above suit, which is stated to be one for recovery of possession and injunction, passed away on 11.10.2000. His wife, the writ petitioner, moved an application for her substitution in the suit as the legal heir of the deceased plaintiff on 20.12.2000. Her application is stated to have been returned for the reason that the suit had already been dismissed on 13.12.2000 as abated. A review petition was therefore filed by the writ petitioner seeking review of the order dismissing the suit. That petition was dismissed. Ext.P3 is the copy of the order dated 13.12.2000 passed by the court below dismissing the suit as abated. Ext.P4 is the copy of the review petition and Ext.P5, the order passed by the court below dismissing that petition. 2. I heard the counsel on both sides. Relying on Ext.P2, copy of the death certificate of the plaintiff in O.S No.75 of 1996 showing that he had passed away on 11.10.2000, the learned counsel for the petitioner submitted that the dismissal of the suit as abated by order dated 13.12.2000 was improper and incorrect. The review petition moved by his wife, the writ petitioner, in the C.R.P No.6816 OF 2004 2 above circumstance ought to have been considered favourably by the court below, but, it was dismissed as barred by limitation, submits the counsel. Since Ext.P3 order passed by the court below holding that the suit has abated is likely to cause serious injury to the legal representatives of the deceased plaintiff learned counsel sought for annulling Ext.P3 order to advance the ends of justice. Learned counsel appearing for the 1st respondent submitted that after dismissal of the suit, the present writ petitioner has filed another suit as O.S No.20 of 2004 in respect of the very same subject matter and it is now ripe for trial. Delay in filing of the writ petition challenging Ext.P5 order passed in the review petition is also highlighted by the counsel to contend that no interference with the order passed by the court below is called for. Ext.P3 order passed by the court below holding that the suit has abated consequent to the death of the plaintiff certainly was not correct. However, it appears, there was no representation by the plaintiff's counsel as and when the case came up before the court. Though the plaintiff had passed away, the duty of the counsel to represent on his behalf for taking appropriate steps for impleadment will continue on the basis of the contract entered earlier with the deceased plaintiff. An extension of the principle covered by Rule 10(a) of Order 22 of the Code of Civil Procedure is called for even in such circumstances. Probably as there was C.R.P No.6816 OF 2004 3 no representation when the case came up before the court on the subsequent day after reporting of the death of the deceased plaintiff, the learned Sub Judge passed the order dismissing the suit, but, such dismissal should not have been made holding that the suit has abated which on that date has not taken place. Whatever that be, the review petition moved by the plaintiff in the given facts of the case should have received consideration as that application had also been moved before the lapse of time leading to the abatement of the suit consequent to the death of the plaintiff. But there was delay in challenging the order dismissing the review petition before this court cannot also be ignored. Though the petitioner has filed a subsequent suit in respect of the very same subject matter, the effect of dismissal of Ext.P3 order has also to be taken into account since the order passed by the learned Sub Judge, though incorrect, may have the effect of dismissal on abatement of a suit as contemplated under Rule 9 of Order 22 of the Code of Civil Procedure. Taking note of the above circumstance, I find that an opportunity has to be extended to the petitioner to have reconsideration of Ext.P4 application again by the learned Sub Judge on its merits. Ext.P4 application shall be treated as an application moved under Section 151 of the Code of Civil Procedure since Ext.P3 order had been passed on an incorrect application of law by the court. But C.R.P No.6816 OF 2004 4 an opportunity for reconsideration of Ext.P4 application can be extended to the plaintiff only on terms since it is seen there was inordinate delay in filing the writ petition challenging Ext.P5 order. Petitioner has to pay a sum of Rs.1,000/- as cost to the 1st respondent for condoning the delay in challenging Ext.P5 order. 3. Learned counsel for the petitioner volunteered to pay the cost to the counsel appearing for the respondent and it was accordingly paid. Ext.P5 order in such circumstances shall stand set aside and the court below is directed to examine the correctness of Ext.P3 order treating it as an application under Section 151 of the Code of Civil Procedure. If the previous suit is revived, it is open to the respondents to canvass whatever challenges available to them as under law for resisting the suit claim. Subject to the above observations, the writ petition is disposed of directing the parties to appear before the court on 24.05.2010. Sd/- S.S.SATHEESACHANDRAN JUDGE //TRUE COPY// P.A TO JUDGE vdv