K. REMA Vs. LAKSHMI

JUDGEMENT

(1.) This is an appeal filed by the petitioners 2 to 4 in O.P.No.766/2017 on the file of the Family Court, Ernakulam, against the judgment dtd. 16/11/2023 dismissing the OP as abated.

(2.) The petitioners filed the above OP for declaration of title, recovery of possession, mandatory injunction etc, claiming that they are the wife and children of late Ramadas. The petition schedule property was obtained by Ramadas as per assignment deed No.5142/2007. While Ramadas was working as a Radiator Mechanic at Vyttila, he engaged the respondent as Housemaid and she was entrusted with the upkeep of the house in the schedule property. The respondent allegedly trespassed into the schedule property and not vacated the same, which resulted in the OP. In the written statement she claimed that she is the wife of Ramadas.

(3.) During the pendency of the OP, the respondent died. According to the petitioners, the respondent has no legal heirs and therefore, they prayed for a decree as prayed for in the OP. The learned Family Court Judge held that after the death of the respondent, no cause of action survives and accordingly the OP was dismissed as abated. According to the appellants, since the OP was filed by them for declaration of title, recovery of possession etc, even after the death of the sole respondent the cause of action survives and as such, the Family Court ought to have proceeded under Order XXII Rule 4A of the Code of Civil Procedure (in short 'CPC') and should not have dismissed the OP as abated.