EASWARA IYER Vs. VELLA MUTHAN

JUDGEMENT

(1.) -A learned single Judge has referred the second appeal for consideration of a Bench taking the view that question of law arising in this case is of general importance. Short facts are as follows:- The second appeal is at the instance of the plaintiff in O.S. 225/96 of the Munsif's Court, Chittur. The suit was for a permanent injunction restraining the defendant from obstructing the plaintiff in taking tractor etc. to A Schedule property from B Schedule property, which, according to the plaintiff, is a pathway. He alleged that he has got title to A and B schedule properties. The suit was decreed and by judgment dated 20.3.1979 the defendant was restrained from obstructing the plaintiff. A.S. No. 112/79 was preferred before the District Court, Palghat by the defendant. The appeal was allowed by judgment dated 23.1.89. The decree for injunction was set aside and the suit dismissed. Against the above judgment the plaintiff filed S.A. 103/82. This Court dismissed the appeal in limine by judgment dated 21.6.1988. Plaintiff preferred SLP No. 11314/89 before the Supreme Court which was granted and the Civil Appeal No. 3057/95 was allowed on 20.2.1995 setting aside the dismissal of the second appeal in limine. This court was directed to hear the matter afresh. After remand as above C.M.P. No. 2266, 2267, and 2265 of 1996 were filed by the legal heirs of the appellant to implead them as additional appellants to set aside abatement and to condone the delay in filing the above applications. These petitions were filed on 13.12.1996. The delay to be condoned as to the extent of 3 years and 137 days. Thereafter CMP No. 1405/97 was filed on 29.8.1997 to implead the heirs of the respondent. Later, CMP No. 94/98 and CMP No. 93/98 were filed to set aside abatement of the second appeal on the death of the respondent and to condone the delay of 234 days in filing the application for impleading.

(2.) The additional respondent sought to be impleaded opposed petitions to implead legal heirs of the appellant, to condone the delay and to set aside the abatement of the appeal. It was contended that the original plaintiff/appellant died on 27.4.1993 during the pendency of the special leave petition before the Supreme Court. His legal representatives did not get impleaded nor the deat of the plaintiff brought to the notice of the Supreme Court. Thus, by the time the Supreme Court passed order on the special leave petition and civil appeal on 20.2.1995, the special leave petition had been abated due the death of the sole petitioner. The order remand passed without noting the fact that the plaintiff was no more is ineffective and nonest. The petitions for impleading to set aside abatement and to condone the delay are to be filed before the Supreme Court and not before this Court. No second appeal was- pending before this Court at the time of the death of the plaintiff which would enable this Court to entertain these petitions. It was further submitted that there is no ground to condone the delay in filing the petition to implead the legal heirs of the sole respondent. The death of the sole respondent on 6.1.1997 was reported by the counsel appearing for the respondent as per memo dated 4.2.1997 filed in this court. In spite of that the petition for impleading etc. was filed only on 29.8.1997. On this ground, it is submitted that the petition to set aside abatement for the reason of the death of sole respondent and petition to condone the delay and to implead legal heirs are only to be dismissed.

(3.) Learned counsel-for the appellant would submit that even though the order passed by court against the dead person is a nullity, neither the party nor this court can ignore the order of the court and it is for the respondent to move the Supreme Court for clarification. Reliance was placed on the observations contained in the judgment in O.P. No. 16075/93 in support of the legal contention. In the above case, Taluk Land Board passed an order directing the declarant to surrender certain extent of land. Challenging the above order the declarant filed a revision under Section 103 of the Kerala Land Reforms Act before this court. While setting aside the order of the Taluk Land Board this Court directed the Taluk Land Board to hear the matter afresh and pass appropriate orders. Special Leave Petition filed by the State against the above order was allowed by the Supreme Court and the order of remand to the Taluk Land Board passed by this court was set aside. During the pendency of the special leave petition before the Supreme Court the respondents who was the declarant had died, but his legal representatives were impleaded. O.P. No. 16075/93 was filed by the legal representatives of Subramania Iyer (declarant) seeking a writ of mandamus against the Taluk Land Board to hear the case afresh as directed by this court in its order under C.R.P. on the ground that the order passed by the Supreme Court in the SLP was null and void, as it was passed against a dead person. While considering this question the learned single Judge observed that in a collateral proceeding this court is not entitled to ignore the order of the Supreme Court notwithstanding the fact that it was passed at a time when the respondent before the court was dead. The legal representatives of deceased declarant has to approach Supreme Court for getting a declaration or clarification that its decision is not binding on the legal representatives. The learned single Judge took the view that jurisdiction of this court under Art. 226 of the Constitution cannot be exercised in the facts of the case.