SYED DHASTHAKEER Vs. NAVAB JOHN

JUDGEMENT

(1.) Navab John, the sole respondent in the second appeal as plaintiff, filed the original suit in O.S.No.627 of 2003 on the file of the Court of the Additional District Munsif, Kallakurichi for bare injunction against the appellant Syed Dhasthakeer and deceased Syed Akbar (second defendant). During the pendency of the suit, Syed Akbar died and the suit as against him was allowed to abate. The trial Court, after trial, decreed the suit and granted the relief of injunction sought for by Navab John. As against the decree of the trial Court, an appeal was filed as A.S.No.44 of 2007 on the file of the Sub-Court, Kallakurichi. The learned Sub-ordinate judge, Kallakurichi by a judgment and decree dated 13.09.2010 dismissed the appeal confirming the decree passed by the trial Court. As against the said decree of the first appellate Court by which the decree of the trial Court was confirmed, the present second appeal has been filed.

(2.) The learned counsel for the first respondent submits that the second respondent Syed Akbar is no more and the appeal having been filed against a dead person is a nullity. Mr.AR.L.Sundaresan, learned senior counsel arguing on behalf of the counsel for the appellant submits that the said Syed Akbar figured as a co-defendant along with the appellant and that he did not contest the suit and remained ex parte before the trial Court. Learned senior counsel also submits that even in the first appeal before the first appellate Court, he need not have been made a party respondent as no relief was sought against him.

(3.) Admittedly, during the pendency of the first appeal, the said Syed Akbar died and the fact of his death was recorded by the first appellate Court. No steps were taken by the appellant herein or any other party to the first appeal to get the legal representatives of Syed Akbar impleaded in the first appeal. From the trial Court records it is found that even during the pendency of the suit, namely on 14.11.2005 itself, a memo was filed informing that the said Syed Akbar, who figured as D2, had died. Thereafter, despite the grant of time for taking steps, the first respondent herein, who was the plaintiff before the trial Court, did not take steps and allowed the suit as against the Syed Akbar (D2) to abate. Thereafter, the suit was allowed to be dismissed for default in entriety to be restored subsequently on an application. Even after such restoration, no steps were taken to set aside the abatement caused by the death of Syed Akbar, who figured as second defendant. The trial Court seems to have proceeded with the suit and pronounced a judgment simply indicating that Syed Akbar, the second defendant remained ex parte without even noting the fact of his death and the abatement caused due to the failure to take steps to bring his legal representatives on record. As such, the judgment pronounced and decree passed by the trial Court shall be a nullity so far as the same is against Syed Akbar, who figured as second defendant.