KUNHIKAYYUMMA Vs. UNION OF INDIA

JUDGEMENT

(1.) The question involved in the second appeal relates to a procedural matter. There is no controversy on the merits of the suit from which the second appeal has arisen. The suit was one filed by the Union of India for recovery of a sum paid as loan under a scheme for affording financial assistance to evacuees from Malaya. The defence was that the payment was a gratuitous one. That plea was rejected by the Trial Court. It has not been pursued in appeal. The liability under the decree, if it is otherwise sustainable, could not, therefore, be in doubt or dispute.

(2.) The facts relevant for the question to be considered in the second appeal are the following:-- In the course of the suit which was instituted in 1969 the original defendant died on 8-12-1971. Perhaps understandably in a case where a governmental agency is a party to a litigation, an application for impleading the legal representatives was not made in due lime permitted under law, namely, on or before 7-3-1972. The suit has to be treated as abated on 8-3-1972. On 17-3-1972 an application for impleadment of the legal representatives was filed as I. A. No. 657 of 1972. It was supported by an affidavit by the Government Pleader of the State of Kerala who was appearing on behalf of the plaintiff. Notice was ordered on the 18th Mar. 1972. It was posted to 27-3-1972. The court made the following endorsement on the petition:

(3.) The contention based on abatement appears to have been more pointedly urged in appeal before the lower appellate court. The appeal was dismissed. In the course of the hearing of the appeal there was dispute even as regards the date of death of the original defendant. The Government Pleader on behalf of the plaintiff respondent in appeal pointed out that the court had recorded the date of death of the original defendant as 11-1-1972. If that is the correct date of death it is obvious that the application for impleadment of the legal representatives is well within time allowed in that behalf. The lower appellate court was, however, not inclined to investigate this controversy, for, according to it, the suit was "not bad" even on the assumption that the sole defendant was dead on 8-12-1971. It took the view following the principle discernible from the decisions in Bachan Ram v. Gram Panchayat Jonda, AIR 19 1 Punj & Har 243, and Delhi Development Authority v. Raghu-nath Sahai Gupta, AIR 1973 Delhi 262, that the application I. A. No. 657 of 1973 could be treated as an application to set aside abatement as well. An attempt to distinguish the aforesaid cases on the ground that the petition in the present case was only one filed under S.151 of Civil P. C. did not, rightly according to me, appeal to that court. The court observed that "the mere labelling of the application as one under S.151 will not detain the court from doing justice if the prayer contained in the application attracts the applicability of O.22 R.9, C. P. C." The main grounds urged in the court below to attack the Trial Court's decree were: (i) No notice was issued to the legal representatives before I. A. No. 657 of 1972 seeking impleadment was al-lowed. (ii) The application itself did not contain sufficient grounds justifying an order setting aside the abatement. On the first contention the lower appellate court observed that the application had not been opposed. The possibility of the Trial Court having heard counsel for the original defendant was indicated. It further observed that there was no provision providing for the issue of notice to the proposed legal representatives before they are impleaded.