RASHEEDA Vs. NAZEER

JUDGEMENT

(1.) Abdul Razak Kunju, the father of the Petitioner herein, filed O.S. No. 561 of 1997 on the file of the Court of the Munsiff of Kayamkulam, for a declaration that the documents executed by him do not bind on him and the properties and that they are null and void and also to set aside and cancel the documents. Abdul Razak Kunju was represented by his next friend and daughter Rasheeda, the Petitioner herein. The Defendants in the suit are the son, daughter and wife of Abdul Razak Kunju. Abdul Razak Kunju died during the tendency of the suit. I.A. No. 1075 of 1998 was filed by the Petitioner to impale four other persons as the legal representatives of the deceased Plaintiff. The Petitioner also filed I.A. No. 1076 of 1998 to impaled her as the second Plaintiff. The court below dismissed I.A. No. 1076 of 1998 by the order dated 28.2.2001 and on that date itself, dismissed the suit as abated. This Revision is filed by the Petitioner challenging the judgment in the suit. The order in I.A. No. 1076 of 1998 is not challenged in the Revision. The judgment passed by the court below reads as follows:

(2.) The records of the case were called for. From the records, it is seen that I.A. No. 1076 of 1998 was dismissed by the following order:

(3.) The contention of the Petitioner is that there is no abatement. The cause of action survives and the Petitioner having filed an application for imp leading, the court below could not have dismissed the suit on the ground of abatement. It is submitted that the judgment of the court below is illegal and unsustainable and therefore, it can be interfered with in the exercise of the jurisdiction under Section 115 of the Code of Civil Procedure. The learned Counsel for the Petitioner also submitted that the power under Article 227 of the Constitution of India can also be invoked to set right the proceedings and to see that the suit is disposed of in accordance with law. The applications for imp leading were filed within time as stipulated under Article 120 of the Limitation Act. The court below dismissed I.A. No. 1076 of 1998 on the following grounds: (1) The Plaintiff (Abdul Razak Kunju) appeared before Court in person and submitted that the suit was instituted without his knowledge and consent. He also stated that he did not want to proceed with the suit. (2) The next friend cannot subrogate to the position of the original Plaintiff. (3) The relief sought for by the Plaintiff in the suit is for a declaration of his right, which is a right in person am. With the demise of the Plaintiff, such right ceases to exist and nothing survives for consideration. Therefore, the next friend has no locus stand to get herself imp leaded and to prosecute the suit.