K. Rema Alias Manorama vs Lakshmi (Died)

C.Pratheep Kumar, J.

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 dated 16.11.2023 dismissing the OP as abated.

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.

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.

Now the points that arise for consideration are the following :-

(i) Whether the Family Court was justified in dismissing the OP as abated ?

(ii) What is the procedure to be adopted in case there is no legal representatives ?

As the sole respondent is no more and there is no legal representatives to the respondent, we heard the learned counsel for the appellants.

The points :- The petitioners in the OP seek the prayers of declaration of title, recovery of possession and mandatory injunction over the petition schedule property claiming themselves to be the wife and children of late Ramadas. The 1st petitioner is no more and petitioners 2 to 4 are the appellants herein. The respondent claimed that she is the wife of late Ramadas. During the pendency of the OP, the respondent died and according to the appellants, she has no legal representatives. Since the OP is for declaration of title and recovery of possession of petition schedule property, the finding of the learned trial Judge that right to sue does not survive, is not correct. In such circumstance, as argued by the learned counsel for the appellants, the learned trial Court ought to have proceeded with the OP under Order XXII Rule 4A CPC which states as follows :-

“4A. Procedure where there is no legal representative.

(1) If, in any suit, it shall appear to the Court that any party who has died during the pendency of the suit has no legal representative, the Court may, on the application of any party to the suit, proceed in the absence of a person representing the estate of the deceased person, or may by order appoint the Administrator-General, or an officer of the Court or such other person as it thinks fit to represent the estate of the deceased person for the purpose of the suit; and any judgment or order subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he would have been bound if a personal representative of the deceased person had been a party to the suit.

(2) Before  making  an  order  under  this  rule,  the  Court-

(a) may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate of the deceased person as it thinks fit; and

(b) shall ascertain that the person proposed to be appointed to represent the estate of the deceased person is willing to be so appointed and has no interest adverse to that of the deceased person.”

Instead of proceeding under Rule 4A of Order XXII CPC, the learned Judge dismissed the OP as abated, which is not legally sustainable. Since in this case there is no legal representatives for the respondent and the right to sue survives, the Family Court ought to have proceeded under Rule 4A of Order XXII. Therefore, the impugned order dismissing the OP as abated is liable to be set aside. The points are answered accordingly.

In the result, the appeal is allowed. The impugned order dismissing the OP is set aside. The learned Family Court Judge is directed to take back the OP into file and to proceed with the same under Rule 4A of Order XXII CPC.