STELLA PEREIRA BLAIZUE PEREIRA Vs. ADIMA ABDUL LATHEEF
LAWS(KER)-1968-11-20
HIGH COURT OF KERALA
Decided on November 01,1968

STELLA PEREIRA BLAIZUE PEREIRA Appellant
VERSUS
ADIMA ABDUL LATHEEF Respondents

JUDGEMENT

- (1.) This Civil Revision Petition attacks orders passed in proceedings which, right from the start, seem to have stemmed from a confusion.
(2.) A suit for recovery of possession was filed by the sole plaintiff in a suit who died pendente lite. On his death the present revision petitioners filed a petition to get themselves impleaded as plaintiffs 2 and 3 and to get 3 other heirs impleaded as defendants 3, 4 and 5 because those 3 persons were outside the country and their signatures could not be obtained for getting them impleaded as coplaintiffs. Notice was being taken from time to time by the petitioners to the 3 others and there was considerable neglect in renewing the notices. The Court ultimately said that no further adjournment would be granted and on the adjourned date again there was default and so the Court dismissed the suit for default. The revision petitioners thereupon filed a petition for restoration of the suit, which again was considered by the Trial Court and on finding that the suit had been dismissed rightly for default, it declined to restore the suit. A Civil Miscellaneous Appeal was filed against this order which also ended in dismissal and now this revision petition has been filed by the same petitioners to see if the suit could be restored to file and continued.
(3.) When a sole plaintiff dies the proper procedure is to take steps under O.22 R.3 CPC. Till they are impleaded as per that provision there is no additional party and if steps are not taken to get the legal representatives impleaded in time the suit abates. The learned Subordinate Judge has no doubt pointed out, in the C. M. A., that the suit should not have been dismissed for default because the legal representatives had not yet come on record as parties and an order passed against a dead person would be a nullity. Both sides and the Trial Court appear to have proceeded on the footing that there was a default on the part of the coplaintiffs and as such the suit had to be dismissed for default. The fact was that the petitioners had not become coplaintiffs yet and till they were impleaded there was no case of the suit being continued by them or the suit being dismissed for their default. Again, the suit, if dismissed, could not be restored by resort to a proceeding under O.9 CPC or by inviting the jurisdiction of the Court under S.151 CPC. The entire proceedings for restoration were as misconceived as the order of the Court dismissing the suit for default. Since this serious error in the procedure had not been discovered till the Subordinate Judge pointed out the correct procedure one cannot find fault with the petitioner for his having chosen to move for restoration of the suit, misled, as he was, by the order of the Court that the suit was dismissed for default. However, at the stage when the Subordinate Judge pointed out that the course open to the party was to get the abatement set aside he need not have coma up to this court. Anyway, since the Subordinate Judge also elaborately considered the question of default the party has pardonably approached the revisional Court. There is no doubt that the dismissal of the suit for default was not correct in law; but has the suit abated by efflux of time;


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