Kerala High Court
State Of Kerala vs V.T.Mathen on 3 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
Wednesday, the 3rd day of November 2021 / 12th Karthika, 1943
IA.NO.1/2021 IN LA.APP. NO. 844 OF 2012
LAR 529/2009 OF II THE ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.
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PETITIONERS/LEGAL REPRESENTATIVES OF THE DECEASED FIRST
RESPONDENT V.T.MATHEN:
1.JACOB MATHEN,AGED 56 YEARS,S/O. THE LATE V.T.MATHEN,
PRESENTLY WORKING ABROAD AND HAVING PERMANENT RESIDENCE
AT VATTAPPARAMBIL,VAZHAYILA,PEROORKKADA,THIRUVANANTHAPURAM,
695005.REPRESENTED BY HIS DULY CONSTITUTED ATTORNEY,
PHILIP MATHEN, THE 3RD PETITIONER HEREIN,AGED 47 YEARS,
S/O.THE LATE V.T.MATHEN, RESIDING AT VATTAPPARAMBIL,
VAZHAYILA, PEROORKKADA, THIRUVANANTHAPURAM-695005.
2.DAISY ANN TOM THARAKAN,AGED 52 YEARS, D/O.THE LATE V.T.MATHEN,
PRESENTLY WORKING ABROAD AND HAVING PERMANENT RESIDENCE
AT VATTAPPARABIL,VAZHAYILA,PEROORKKADA,THIRUVANANTHAPURAM,
695005. REPRESENTED BY HIS DULY CONSTITUTED ATTORNEY,
PHILIP MATHEN,THE 3RD PETITIONER HEREIN, AGED 47 YEARS,
S/O.THE LATE V.T.MATHEN, RESIDING AT VATTAPPARAMBIL,
VAZHAYILA,PEROORKKADA,THIRUVANATHAPURAM-695005.
3.PHILIP MATHEN,AGED 47 YEARS,S/O. THE LATE V.T.MATHEN,
RESIDING AT VATTAPPARAMBIL,VAZHAYILA,
PEROORKKADA,THIRUVANANTHAPURAM-695005.
4.SUJAMOL THOMAS,AGED 51 YEARS,RESIDING AT 3G,SFS PALACE COURT,
PIPELINE ROAD,KOWDIAR P.O.,THIRUVANANATHAPURAM-695003.
P.T.O.
5.POOJA RAICHEL THOMAS,AGED 26 YEARS,RESIDING AT 3G,SFS PALACE COURT,
PIPELINE ROAD,KOWDIAR P O.,THIRUVANANTHAPURAM- 695003.
6.SREYA SUSAN THOMAS,AGED 23 YEARS,RESIDING AT 3G,SFS PALACE COURT,
PIPELINE ROAD,KOWDIAR P.O.,THIRUVANANTHAPURAM-695003.
RESPONDENTS/APPELLANT AND 2ND RESPONDENT:
1.STATE OF KERALA,REPRESENTED BY THE DISTRICT COLLECTOR,
COLLECTORATE,THIRUVANANTHAPURAM-695 001.
PRESENTLY AT KUDAPPANAKUNNU,THIRUVANANTHAPURAM-695043.
2.THE SECRETARY,TRIDA,JAYA MANSION,
THIRUVANANTHAPURAM- 695 001.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to recall the judgment
dated 01-02-2018 and to rehear the Appeal after impleading the legal
representatives of the deceased First Respondent V.T.Mathen.
This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof,and this court's judgment dated
01/02/2018 in LAA No.844/2012 and upon hearing the arguments of
SRI.J.HARIKUMAR, ADVOCATE for the petitioners, SMT.K.G.SAROJINI,
GOVERNMENT PLEADER for the respondent 1 and of SRI.M.RAJAGOPALAN NAIR,
STANDING COUNSEL for the respondent 2, the court passed the following:
P.T.O.
ANNEXURE A1:DEATH CERTIFICATE DATED 01/08/2015 ISSUED BY THE
REGISTRAR OF BIRTHS AND DEATHS, CORPORATION OF THIRUVANANTHAPURAM.
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C.S.DIAS,J.
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L.A.A.No.844 of 2012
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Dated this the 3rd day of November,2021
ORDER
I.A.No.1/2021
The application is filed to recall the judgment dated
01.02.2018 and rehear the appeal after impleading the
legal representatives of the deceased first respondent.
2. The third petitioner has in the affidavit filed in
support of the application stated that his father was the
first respondent in the appeal, which is filed by the
State, challenging the judgment and decree in
L.A.R.No.529/2009 of the Court of the II nd Additional
Subordinate Judge, Thiruvananthapuram. The
petitioners 1 to 3 in the application are the children of
the deceased first respondent and the petitioners 4 to 6
are the wife and children(legal heirs) of Thomas
Mathan-the deceased son of the deceased first
respondent. The petitioners were all working abroad
L.A.A.No.844/2012
during the pendency of the appeal. The learned
counsel who was appearing for the first respondent
before the Execution Court came to learn about the
death of the first respondent and he sought time to
implead the petitioners before the Execution Court.
Despite the above fact being brought to the notice of
the Execution Court, the first respondent did not take
steps to implead the petitioners as the legal
representatives of the deceased first respondent. The
appeal as against the first respondent had abated. The
learned counsel contacted the third petitioner only on
15.01.2021 and intimated him that the decree amount
was deposited in the Execution Court on 18.09.2019.
He then informed about the appeal before this Court.
It was then that the petitioners made enquiries about
the appeal and came to learn that the appeal was
allowed on 01.02.2018, without recording the death of
the first respondent and impleading the petitioners as
the legal representatives. Therefore, gross injury and
L.A.A.No.844/2012
hardship has been caused to the petitioners.
Immediately, they made arrangements through a
counsel to obtain the certified copy of the judgment
which was received on 03.02.2021. Hence, the
petitioners pray that it is only just and proper that the
appeal be reheard after impleading them as the legal
representatives of the deceased first respondent.
3. The application is vehemently opposed by the
first respondent, who has filed a detailed counter
affidavit, inter alia, contending that the petitioners
have conceded to the fact that they had not intimated
to this Court regarding the death of the first
respondent. There is latches and negligence on the
part of the petitioners in not informing this Court
about the death of the first respondent, before the
appeal was decided. The petitioners have approached
this Court without any bona fides. There is no material
to prove that the petitioners had taken efforts to bring
the above fact to the notice of this Court. Hence, the
L.A.A.No.844/2012
application may be dismissed.
4. Heard; Sri. J. Harikumar, the learned counsel
appearing for the petitioners and Smt. K.G. Sarojini,
the learned Government Pleader appearing for the
first respondent-State.
5. Sri. J. Harikumar drew the attention of this
Court to Annexure-A1 death certificate to substantiate
that the first respondent passed away on 13.07.2015.
This Court had allowed the appeal on 01.02.2018 with
the first respondent on the party array. Hence, he
contends that the decree is a nullity, since it is passed
against a dead person. He drew the attention of this
Court to the decision of this Court in Paru v. Devaki
Varassiar[1992 KHC 428], wherein it is held that
when the legal representatives come to learn that an
appeal is decided on merits, with their expired
predecessor on record, the only remedy available to
the legal representatives is to move the concerned
court and get the decree reopened and, therefore, get
L.A.A.No.844/2012
themselves impleaded in the concerned case. The said
view has been reiterated by this Court in Uma
Andarjanam v. Neelakandan Namboodiri[2001
KHC 554]. Therefore, the learned counsel prays the
application be allowed and the appeal may be
reopened and reheard, after impleading the
petitioners.
6. The learned Government Pleader, on the
other hand, contended that there is willful latches and
negligence on the part of the petitioners in not getting
themselves impleaded at the appropriate stage. It is
only after the decree was passed allowing the appeal,
that the petitioners have now come up in the present
application. There is no bona fides on their part.
Hence, the application may be dismissed.
7. The point that emanates for consideration in
the application is whether the impugned judgment and
decree is to be recalled?
8. It is on record as evidenced by Annexure-A1
L.A.A.No.844/2012
that the first respondent passed away on 13.07.2015.
This Court allowed the appeal on 01.02.2018, with a
dead person on record and without impleading his
legal representatives.
9. Order XXII Rule 4 of the Code of Civil
Procedure,1908, prescribes that, if an application is
not made under Rule 4(i), the appeal would abate as
against the deceased defendant. The same analogy
would apply to a respondent also.
10. In the instant case, it was for the first
respondent/State to have impleaded the legal
representatives of the deceased first respondent.
Nevertheless, the same was not done and this Court
without taking note of the pivotal aspect, proceeded
and decided the appeal with a dead person on the
party array, which is a nullity. Therefore, following the
ratio in Paru and Uma Andarjanam(supra), I hold
that the petitioners are entitled to get the appeal
reheard on its merits after getting themselves
L.A.A.No.844/2012
impleaded in the party array.
In the result, I allow the application and recall the
judgment dated 01.02.2018 in L.A.A. No.844/2012.
I.A.No.2/2021
In view of the order in I.A.No.1/2021, the
petitioners in the application are impleaded as the
additional respondents 3 to 8 in the appeal. Registry
to carry out the impleadment.
I.A.No.3/2021
Heard.
Allowed.
L.A.A.No.844/2012
Post for hearing in the disposal list on 06.12.2021.
Sd/-
C.S.DIAS, JUDGE
DST/03.11.21
03-11-2021 /True Copy/ Assistant Registrar
