Kerala High Court
Varghese Daniel vs P.E. Geevarghese on 9 April, 2025
FAO(RO)Nos.17/2024 & 18/2024 1
2025:KER:31091
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
WEDNESDAY, THE 9TH DAY OF APRIL 2025 / 19TH CHAITHRA, 1947
FAO (RO) NO. 17 OF 2024
AGAINST THE JUDGMENT DATED 31.01.2024 IN AS NO.66 OF
2018 OF ADDITIONAL DISTRICT AND SESSIONS COURT-III,
PATHANAMTHITTA ARISING OUT OF THE ORDER DATED 02.07.2018
IN OS NO.255 OF 2010 OF ASSISTANT SUB COURT,
PATHANAMTHITTA
APPELLANT(S)/RESPONDENTS 1 AND 2/DEFENDANTS 1 AND 2
1 VARGHESE DANIEL,
AGED 73 YEARS
S/O LATE KUNJACHAN, PANARA CHARIVUPURAYIDATHIL,
KIZHAKKUPURAM P.O, NALLOOR MURI, MALAYALAPPUZHA
VILLAGE, KONNI TALUK, PATHANAMTHITTA DISTRICT
PIN, PIN - 689653
2 LEELAMMA DANIEL,
AGED 71 YEARS
W/O VARGHESE DANIEL, RESIDING AT PANARA
CHARIVUPURAYIDATHIL, KIZHAKKUPURAM P.O, NALLOOR
MURI, MALAYALAPPUZHA VILLAGE, KONNI TALUK,
PATHANAMTHITTA DISTRICT, PIN - 689653
BY ADV A.JANI(KOLLAM)
RESPONDENTS/APPELLANT AND 3RD RESPONDENT/DEFENDANTS 3 AND 4
1 P.E. GEEVARGHESE,
AGED 77 YEARS, S/O LATE KUNJACHAN, RESIDING AT
FAO(RO)Nos.17/2024 & 18/2024 2
2025:KER:31091
PANARA CHARIVUPURAYIDATHIL, KIZHAKKUPURAM P.O,
NALLOOR MURI, MALAYALAPPUZHA VILLAGE, KONNI
TALUK, PATHANAMTHITTA DISTRICT PIN, PIN - 689653
2 SIMI GEORGE,
AGED 47 YEARS, D/O VARGHESE DANIEL, RESIDING AT
PANARA CHARIVUPURAYIDATHIL, KIZHAKKUPURAM P.O,
NALLOOR MURI, MALAYALAPPUZHA VILLAGE, KONNI
TALUK, PATHANAMTHITTA DISTRICT, PIN - 689653
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING
BEEN FINALLY HEARD ON 29.01.2025, ALONG WITH FAO
(RO).18/2024, THE COURT ON 09.04.2025 DELIVERED THE
FOLLOWING:
FAO(RO)Nos.17/2024 & 18/2024 3
2025:KER:31091
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
WEDNESDAY, THE 9TH DAY OF APRIL 2025 / 19TH CHAITHRA, 1947
FAO (RO) NO. 18 OF 2024
AGAINST THE JUDGMENT DATED 31.01.2024 IN AS NO.69 OF
2018 OF ADDITIONAL DISTRICT AND SESSIONS JUDGE-III,
PATHANAMTHITTA ARISING OUT OF THE ORDER DATED 02.07.2018
IN OS NO.139 OF 2013 OF SUB COURT, PATHANAMTHITTA
APPELLANT(S)/1ST RESPONDENT/PLAINTIFF
LEELAMMA DANIEL,
AGED 71 YEARS
W/O VARGHESE DANIEL, RESIDING AT PANARA
CHARIVUPURAYIDATHIL, KIZHAKKUPURAM P.O, NALLOOR
MURI, MALAYALAPPUZHA VILLAGE, KONNI TALUK,
PATHANAMTHITTA DISTRICT PIN, PIN - 689653
BY ADV A.JANI(KOLLAM)
RESPONDENT(S)/APPELLANT AND 2ND RESPONDENT/DFENDANTS 1 AND
2
1 P.E. GEEVARGHESE,
AGED 77 YEARS, S/O LATE KUNJACHAN, RESIDING AT
PANARA CHARIVUPURAYIDATHIL, KIZHAKKUPURAM P.O,
NALLOOR MURI, MALAYALAPPUZHA VILLAGE, KONNI
TALUK, PATHANAMTHITTA DISTRICT, PIN - 689653
2 SIMI GEORGE,
AGED 47 YEARS, D/O VARGHESE DANIEL, RESIDING AT
FAO(RO)Nos.17/2024 & 18/2024 4
2025:KER:31091
PANARA CHARIVUPURAYIDATHIL, KIZHAKKUPURAM P.O,
NALLOOR MURI, MALAYALAPPUZHA VILLAGE, KONNI
TALUK, PATHANAMTHITTA DISTRICT, PIN - 689653
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING
BEEN FINALLY HEARD ON 29.01.2025, ALONG WITH FAO
(RO).17/2024, THE COURT ON 09.04.2025 DELIVERED THE
FOLLOWING:
FAO(RO)Nos.17/2024 & 18/2024 5
2025:KER:31091
JUDGMENT
Dated this the 09th day of April, 2025
These appeals are considered and disposed of together as
they raise common questions for consideration. The common
judgment of the Additional District and Sessions Court III,
Pathanamthitta dated 31.01.2024 in A.S.No.66 of 2018 and
A.S.No.69 of 2018 are challenged in these appeals. These appeals
were filed challenging the common judgment dated 02.07.2018 of
the Sub Court, Pathanamthitta, in O.S.No.255 of 2010 and
O.S.No.139 of 2013. Appellants in FAO(RO) No.17 of 2024 were the
respondents 1 and 2 in the A.S.
2. Heard Sri.Jani A., Advocate, for the appellants. Service as
against the respondents is complete. No appearance for the
respondents.
3. Since the scope of these appeals are limited and since the
challenge is only against the direction of remand alone, I desist from
detailing the facts and other aspects of the matter. Suffice it to say
that the plaintiff in O.S.No.255 of 2010, who was also the 1 st
defendant in O.S.No.89 of 2012, died on 29.04.2018, i.e., before
conclusion of the trial. The judgment was pronounced by the trial
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court on 02.07.2018. The legal heirs of the deceased preferred the
above mentioned appeal. The District Court in those appeals
concluded that legal heirs ought to have approached the trial court in
order to get themselves impleaded and the legal heirs cannot
straightaway come to the appellate court with an appeal. Noting that
the decree passed by the trial court had been rendered a nullity, the
appeals were dismissed by the District Court inter alia holding that
that there was no necessity to go into the merits of the judgment of
the trial court. The operative portion of the common judgment of the
District Court in the appeals thus reads as follows:
"In view of the discussions in point No. 1,
common judgment and decree in OS No. 255/2010,
139/2013, OS No.89/2012 on the files of Sub Court,
Pathanamthitta is null and void and the Appeals No.
66/2018 and 69/2018 are dismissed. The matter is
remanded to the trial court. Parties are directed to
bear their respective costs" (emphasis supplied)
4. The grievance of the appellants in these F.A.Os. is limited
to that part of the impugned judgment of the District Court to the
extent it orders a remand to the trial court. The appellants do not
challenge the finding of the District Court that the common judgment
and decree in O.S.No.255 of 2010 and O.S.No.139 of 2013 of the
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Sub Court, Pathanamthitta, is null and void and that the said
appeals are only to be dismissed. The said finding it is admitted, is
in line with the trite and settled law as laid down by this Court in
Uma Andarjanam v. Neelakandan Namboodiri [2001 KHC 554].
However, the last part of the judgment directing the matter to be
remanded back to the trial court , it is submitted, is erroneous and
needs to be set aside. I find merit in the contention put forth. The
judgment to the extent it directs the matter to be remanded back to
the trial court after finding it to be null and void is erroneous and is fit
to be set aside.
5. Accordingly, the common judgment of the Additional
District and Sessions Court- III, Pathanamthitta, dated 31.01.2024 in
A.S.No.66 of 2018 and A.S.No.69 of 2018 to the extent it directs
remand of O.S.No.255 of 2010 and O.S.No.139 of 2013 to the Sub
Court, Pathanamthitta, is set aside.
F.A.O.No.17 of 2024 and F.A.O.No.18 of 2024 are allowed.
Sd/-
SYAM KUMAR V.M.
JUDGE
smm
