DHANABHAGYAM Vs. SARASWATHY AMMAL

JUDGEMENT

(1.) Aggrieved by the order of the learned District Judge, Palakkad in I.A.Nos.1936/2015 and 1937/2015 in A.S.No.246/2011, the respondents are before this Court.

(2.) The facts in brief are thus: O.S.No.71/2006 is a suit filed by late Sadasivan before the Munsiff Court, Chittoor. He expired during the pendency of the suit. His legal representatives filed I.A.Nos.975/2008 and 976/2008 to get themselves impleaded. The court did not dispose of the impleading application. But, proceeded with the trial and decreed the suit. The defendants, aggrieved by the judgment and decree of the trial court, filed an appeal before the District Court Palakkad. Despite having the knowledge of the death of original plaintiff, the appeal was filed against the dead person, as the decree was drawn in favour of the the original plaintiff alone. Notice was ordered in the appeal. On getting a report that the sole plaintiff was reported to be dead, appeal was posted for taking steps. No steps were taken and no representation was made by the appellants and in consequence to which, the appeal was dismissed for default. The appellants filed I.A.No.1936/2015 for condonation of delay of 1043 days and I.A.No.1937/2015 under Order 41, Rule 19, C.P.C. for re-admitting the appeal to file. The petitioners submitted that they were under the impression that the legal heirs of the deceased plaintiff were impleaded as supplemental plaintiffs in the suit, since they had filed an application for getting themselves impleaded consequent to the demise of the original plaintiff. Certified copy of the decree obtained from the trial court did not indicate the fact of death of the original plaintiff or the impleadment of his legal heirs. That is how the appeal happened to be filed in the name of the deceased plaintiff as respondent. The petitioners had moved I.A.Nos. 2962/2012 and 2928/2012 for amendment of the decree and judgment on 30.11.2012 before the trial court. It was then that the trial court noticed the omission to dispose the applications filed by the plaintiff's legal heirs for impleadment and amendment, filed as I.A.Nos.975/2008 and 976/2008. Since the applications filed by the petitioners before the trial court were kept pending, they could not take steps to amend the appeal memorandum. It was only on 10.04.2015 that the trial court ultimately passed orders on I.A.Nos.2926/2012 and 2928/2012 and the petitioners got information of the orders only on 05.09.2015. Copies were applied for and it is submitted that there was no willful default on the part of the petitioners to get the orders of dismissal set aside. The respondents, who were impleaded as legal heirs of the sole plaintiff before the trial court, opposed these applications for condonation of delay and restoration of the appeal. It is stated that the orders were passed by the trial court in I.A.Nos.975/2008 and 976/2008 as early as on 21.05.2008 and therefore the contention that no orders were passed on the I.As. to get the legal heirs impleaded, is not true.

(3.) After perusal of the records of the trial Court, the learned District Judge observed that no orders were passed on I.A.Nos.976/2008 and 976/2008 while the suit was disposed of. The trial court had proceeded with the trial as if the supplemental respondents were on record to represent the estate of the deceased sole plaintiff. The judgment of the trial court would indicate that the judgment was passed under the premise that the plaintiffs 2 to 4 were on record as additional plaintiffs and as legal heirs of the deceased sole plaintiff. Even though they were not described in the cause title, in para 4 of the judgment of the trial court, it is specifically stated that the plaintiff had died during the pendency of the suit and the legal heirs were impleaded as supplemental plaintiffs 2 to 4. In fact, it is one of the supplemental plaintiff, who was examined as PW1 before the trial court. The fair copy of the judgment and decree was drafted only with the the sole plaintiff as party. The learned District Judge has observed that notice on I.A.Nos.1941/2011 and 1942/2011 filed by respondents 2 to 4 on 31.08.2011 for amendment of the cause title of the judgment and decree was served on the present appellants. Instead of waiting for the omission to be supplied by the trial court, the petitioners preferred to file the appeal on 01.09.2011. The aforesaid applications for supplying the omissions filed by the legal heirs of the deceased plaintiff was ultimately dismissed on 28.11.2011 for the reason that appeal has already been filed. It is only consequent to the dismissal of the appeal on default that the appellants realised the need to get the cause title of the judgment and decree amended and that is how they happened to file I.A.Nos.2926/2012 and 2928/2012 before the trial Court on 30.11.2012. The legal heirs of the deceased plaintiff had also filed I.A.No.1166/2013, apart from the earlier I.A.Nos.975/2008 and 976/2008 to get the plaint as well as the judgment and decree amended. All these three I.As. were taken together and disposed of vide order dated 10.09.2015 and ultimately the cause title of the plaint as well as the judgment and decree were amended by the trial Court, after a lapse of almost three years.