Mr. Ramnathan (namechanged) rang me up this morning in time to remind me get prepared to leave along with him. Mr. Ramanathan is a resident from Bangalore city which is workplace as well. He iwas in Chennai today visit his son who stays with and under the custody of Mr. Ramanathan's Ex-wife. Mr. Ramananthan can meet his child who is his only son, only twice in a month on any two sundays between 10 am to 6 pm as per the visitiation rights granted to him by the COurt. When Mr. Ramanthan knew very well he shall lose even the minimal period he would spend exclusively with his son when I went with him, he still chose to take me with for a strong reason.

Initially Mr. Ramanatha was given 50% visitation rights by the so Hon'ble Family COurt under which he had taken his son once to his residence at Bangalore for a vacation. When the child was with him, he realized his child was not meted out a humane treatement the family members of his wife. He suspected the child was not happy going back to mom's place fearing ill treatment by the child's maternal uncle. The child  in fact spent a wonderful time with his dad and his paternal grand parents as it can be seen from many photographs and videos of the child when he was at Bangalore. As a reasonable father, Mr. Ramanathan wanted to know the cause for the refusal of the Child to return to his mom's place before he sends his child back by when Mr Ramanathan's wife had approached the police and with their help, they had forcibly entered into Mr. Ramanathan's residence and took the child away after threatening the father with imprisonment if he continues to act in such manner which police believed the father ought not to have did possibly based on stories produced by his exwife to the police.

Mr Ramanathan never fleeced away from India nor attempted to hide the Child, yet, as per the police a father had committed an act short of criminal in nature and warranted a warning of imprisonment if he loves and takes care of his child.

The mother, as soon as she returned, moved a fresh petition and got the 50% visitatation curtailed to mere a visit on sundays between 10 am to 6 pm that too only twice in a month. The father is hell disturbed and saddened. According to Mr. Ramanathan, if the law blindly says a father shall not be allowed to spend some time his own son then the justice system had totally failed. He asks how can a Court say a mother alone can have the custody of boy child even if she beats him or ill treats him in any other manner whereas the father has taken all his care to bring up the child in a suitable environment

Sadly when the matter relating to the custody rights was called in a Judge's Chamber, the child seemed to have told the Judge he was not interested in going back to his father putting my senior in emabarassment. So my senior adviced Mr. Ramanathan not to pursue the matter anymore and make use of the current visitation rights. However Mr. Ramanathan had a different view to offer; accorging to him, the child was tutored and threated to make such statmenents in the court, so it was not a true statement but was told out of fear of consequences which is unnceccsary harrasment by beating the child. Mr Ramanathan wanted my senrio to appreciate it but my senior was wary of appearing for the father before he is assured that his son would be interested in coming along with child

I went with Mr. Ramanathan to study the mind of the Child to verify if all the statments. As far as what I observed, the child had no issues mingling with his father and was in fact  chatting and playing with his father. Mr Ramanathan asked me to take his child off to places like mall or bowling to intereract with him to know what he is in his mind. I did the same, I took him to Phonenix mall which is under construct to become the biggest multiplex in Chennai. We both had great time and he was such an adorable and lovable kid. At first we went inside a pet shop and from there we visited numer of shops iwthout buyting any\thing and even took couple of photographs inside some shops before we settled down to have a good lunch at NANDOS. the kid had one leg chicked and i never seen a kid eating so well like him. He devoured the food and finished it with full satisfaction. constrained by the budget his father gave me, i chose to have a simple veg rice after whcih we both went to a play bowloing and i taught how to play it and finally we retuned safe to the hotel where his fahter Mr.Ramanathan was staying.

while having lunch, I tried to see if the kid opens up about what his parents are undergoing and what impact it had on him. I was happy to hear he was happy to be wityh his father and at the same time, he sent out a repulsive expression when i menioned about his mohter. well i dont want to pas judgment but the bottom line is in matters relating to this the concept of best interest of the child is gravely misunderstood an largely misapplied 

Can a dead man live?

Can a dead man live for the purpose of maintaining a civil suit or appeal? [hereinafter, the term 'suit' shall include 'appeal' also; incidentally the plaintiff would include appellant]

Under the Code of Civil Procedure, 1908, the Court says a dead man is a dead man unless he is in a group of living human beings. what?

Supposing a suit is filed in the name of the plaintiff who is dead at the time of the institution of the suit, earlier the Court treated it equivalent to a case where wrong person was made a plaintiff and viewed it as defect curable under Order 1, Rule 10 CPC by permitting his legal representatives to be substituted in his place.[1] However, over the years, the court differed from the earlier view on the ground that a dead person is in existence neither in law nor fact. The court reasoned that

" the ‘person’ referred to in Order 1 Rule 10 CPC is a person in existence who may, of course,  be either a human being or a legal person. So according to the later view the dead person is not a human being. But the Oxford Advanced Learner’s Dictionary says otherwise. It refers to a human being as a person rather than any animals. Therefore what the Court while expressing the later view must have had in mind was that a living human being. The court ruled out the possibility of there being any cure under Sec. 153 read with S. 151 of CPC.[2] It is because section 153 says the Court may any time amend any defect or error in any proceeding in a suit but in a case where the suit is instituted in the name of dead plaintiff, the suit itself never comes in to existence and becomes a nullity. So consequently there is no proceeding before the Court to amend as such.[3] "

However if a suit is filed in the name of more than one plaintiff amongst one of whom  is dead, then in such a case recourse may be had to sec 153 read with Order 1 rule 10 for the reason the plaintiff(s) who is/are alive on the record are capable of instituting that suit and prosecuting it as well.[4] However my doubt here is why such a suit can’t be dismissed as against the dead plaintiff alone based on the very same principle laid down by the court in cases where the suit was filed in the name of the sole deceased plaintiff. Would not even in the former case, the suit remains a nullity as against the dead plaintiff alone while in respect of others the suit may be a valid one? Also the respondent in an appeal is treated not a dead person either. That is the rule applicable to appellant in this regard has not been applied in case of a respondent. [ Refer Nachimuthu Kounder(died) v. Manikavalli 1996 (1) CTC 532[by Jagadeesan.J]. This only means the dead lives in a group but not alone as per the Judiciary!!

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[1] AIR 1938 Nag 458 - by Niyogi.J

[2] Section 153 of the CPC reads thus “The Court may, at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.” And Section 151 of CPC deals with the inherent powers of the Court.

[3] Amar Kaur v. Sadhu Singh, AIR 1961 PH 57[by Gurdev Singh.J]

[4] Rangarao Vyankatesh Deshphande v. Kashinath Dhondu, AIR 1947 Nag 73 [by Niyogi] relying on AIR 1938 Nag 458.

Odin's Judgment

IN THE ODIN’S COURT OF JUSTICE

Appellate Jurisdiction

CORAM: JUSTICE ODIN

10^th of May, 2013

The Appellant

Vs

The Respondent

THE facts of the above second appeal as set forth before this Court is that the defendants are the appellants and the plaintiff is the sole respondent. The suit was filed for specific performance. The suit was decreed and confirmed by the first appellate court. The above second appeal is filed challenging the concurrent judgments of the courts below. Pending the suit,[1] the plaintiff sold away the suit property to a 3^rd party. There is a delay of 151 days in filing the appeal, hence a separate application praying for the Condonation of the delay also is filed here alongwith. However, the said application is yet to be numbered and was returned for want of compliance with certain defects found therein. Consequently the second appeal has not been numbered till this date.

Be that as if may, while the said application was not represented, the sole respondent/plaintiff died necessitating the appellant herein to file a suitable application to bring the legal heirs of the deceased sole respondent on file. Accordingly there is also an application filed before this Court to that effect. In the said scenario, another application was sought to be made by the appellant herein to implead the 3^rd party in the second appeal. After serving of notice upon the proposed respondent/3^rd party in the appeal, the 3^rd party entered appearance and vehemently opposed the application contending that he is not a necessary and property proper party to be impleaded for the adjudication of the appeal. On the other hand, the appellant took recourse to order 22 rule 10 in demanding this Court to implead the 3^rd parties as the contesting parties to the appeal.

Further the 3^rd parties seriously objected the very maintainability of the appeal on the ground that the suit itself got abated on account of the death of the sole respondent/plaintiff and no steps were taken by the appellant to bring on the LRs of the deceased plaintiff on record within the time permitted under the law. The appellant resisted this contention relying upon section 141 read with order 22 rule 11 of the CPC, the conjoined reading of which restricts the scope of the section 141 to either a suit or an appeal, both being meant the same under the latter provision, and not the proceedings which is a larger ambit than a suit or an appeal.. Therefore an application taken out under Order 22 pending an appeal alone will have to comply with legal incidents under that order in view of section 141 and such as the application made to condone the delay in filing the second appeal or the application to bring on record the legal heirs of sole respondent in an unnumbered appeal,[2] all of which forms part of proceedings falling beyond the scope of order 22 rule 11. Heard both the counsels appearing for the appellants and on behalf of the 3^rd parties and the judgment is delivered as follows:

Issues framed:

1. Would the second appeal abate against the sole respondent when he dies after the presentation of the second appeal filed with delay but before it is numbered, especially when the separate miscellaneous application filed seeking to condone such delay too has not been numbered yet? And would it make any difference if such application is numbered but not the second appeal?
2. Is the filing/presentation of the second appeal perse treated as an admission of it?
3. Before it is numbered, can an application to condone the delay in filing the second appeal be called proceedings as contemplated under section 141 of the CPC?

It is necessary to decide issues 2 and 3 first to decide issue 1

Issue 2.

When an appeal is filed/presented in a court, at first, it is given a serial number, shortly called as S.R.Number after the stamp is defaced. subsequently, the appeal papers are sent to the respective passing officers who would verify if the appeal is filed in order and if so, they would attest on it to number it, if not return them for compliance with the defects. Therefore until the appeal is numbered, the appeal do not come into existence and will not form part of the record of this court. Assuming the appeal is numbered, then it shall be posted for hearing upon which the Court which hears it may admit or dismiss it at the stage of admission itself. so it is clear the stage of admitting an appeal comes much later to the stage of presentation/filing of an appeal and hence mere presentation/filing of an appeal shall not be treated as an admission of an appeal. Accordingly issue 2 is answered.

Issue 3

Section 141 of the CPC states  the procedure provided under CPC that apply to  a suit would muta mundais apply to all proceedings in any court of jurisdiction excepting proceedings under Article 226 of the Constitution. The learned counsel for appellant contended that this section should be read along with order 22 rule 11 as per which the word ‘suit’ mentioned in an application of this order would include an ‘appeal’ but not proceedings. Therefore as per the arguments advanced by the counsel for appellant, the question of abatement would not arise in the application made before the second appeal came into existence. This court while may not agree with the interpretation given by the counsel for appellant on order 22 rule 11 read with section 141 of the cpc, this Court would still agree with the view of the appellant that abatement would not arise in the unnumbered application made filed to condone the delay caused in filing the main second appeal itself for the simple reason that when the appeal itself is not numbered and consequently have not come into existence, it shall not be logical to hold that  the appeal will abate upon the death of the sole respondent. further an application to condone the delay in filing the appeal is a counterpart of an application to condone the delay in filing a suit since both are filed to initiate a proceeding itself. however the latter is not contemplated under law and once the suit is barred by limitation, it can never be instituted, consequently, under section 141, the application to condone to delay in filing the appeal will not attract non-existing law applicable to such application and consequently no abatement would arise in such application. This is different from a situation where the appeal is numbered and subsequently any of the parties die in which case the appeal may abate and there will be a necessity to file an application to condone such abatement in the manner prescribed under order 22 of the CPC. Therefore this Court holds an application filed seeking to condone the dealy caused in filing the second appeal is not a proceedings as contemplated under section 141 of the CPC

Issue 1

 As it is elaborately discussed above, a second appeal unless it is numbered it can never be construed to have come into existence in the eye of law and therefore cannot become part of the record and consequently if either of the parties die pending the applications in the unnumbered second appeal, no such abatement would arise.

In the end, the matter is disposed of with the direction to the appellant to seek leave as contemplated under order 22 rule 10 before an application to implead the 3^rd party pendent lite is filed. Further the application filed by the appellant to bring the legal heirs of the sole respondent is allowed and the registry is directed hereby make the suitable amendments in the both the cause titles of the application and the main second appeal and number the second appeal if all other requirements are complied with. Accordingly this matter is disposed of with the above directions.

Sd/-

Odin.J

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[1]  if it was pending an unnumbered second appeal , then in such case the 3^rd parties may not be allowed to be impleaded under order 22 rule 10 in view of order 22 rule 11 which treats suit and appeal the same which only mean a party who bought the property not pending the appeal shall be construed to have bought not pending the suit and therefore can’t have the right nor be forced to be impleaded under order 22 rule 10.

[2] Such an appeal had not yet become an appeal on record.