Melepurath Sankunni Ezhuthassan v. Thekitil Geopalankutty Nair

This case analysis is written by Shivani Kumari, a student of Lloyd law college, Greater Noida.

Case Number

Civil Appeal Number 91 of 1972.

Equivalent Citation

1 SCC 118″, 1986 AIR 411

Bench

D.P. MADON

G. L. OZA

Decided on

29th November 1985

Relevant Act/ Section

Code of Civil Procedure, 1908 order XXII Rules 1 and 11 read with section 306 of the Indian Succession Act, 1925

Brief Facts

Ezhuthassan (hereinafter referred to as the appellant) filed a case in the court of a subordinate judge claiming a sum of Rs. 5,500 from Mr. Nair (hereinafter referred to as the respondent) as damages for defamation. The Trial Court dismissed the suit with costs. The Appellant thereupon filed an appeal in the District Court of Palghat. The District Judge allowed the appeal and passed a decree awarding to the Appellant Rs. 500 as damages and proportionate costs both of the said appeal and suit. The respondent then filed a second appeal in the High court of Kerala and the appellant filed his cross- objection thereto. The High court reversed the decree of the Appellate Court and dismissed the Appellant’s cross-objections as also the suit directing the parties to bear their own costs throughout. As the decision of the high court was against the appellant, and he being not satisfied with the same, he filed an appeal by special leave granted by the Supreme Court. During the pendency of the appeal, on 16th May 1983, the appellant died leaving his two grandsons and granddaughters as his only legal heirs and representatives. On 4th November 1985, one of his grandson and granddaughter filed a civil miscellaneous petition before the court to bring all four of them on record of the appeal in place of the appellant. As the application was filed beyond time, they filed another civil miscellaneous petition no. 43066 of 1985, to condone the delay and to set aside the abetment of the appeal.

Issues before the Court

Whether the death of the appellant will abate the Appeal
Whether the delay in filing civil miscellaneous application by the grandchildren of appellant for setting aside abatement will be excused

The Ratio of the Case

The appeal was filed to enforce the right of the appellant to sue for damages for defamation. The appellant died during the pendency of the appeal having his rights did not survive his death. Also had he died in the pendency of the suit or his first appeal to the district court, it would have been equally abated as it did by the hon’ble Supreme Court. Because he had succeeded in the first appeal, had he died during the pendency in High Court, the appeal would not have been abated.

The Decision of the Court

The Appeal is dismissed as having abated. The civil miscellaneous petition filed by the appellants grand-children were also dismissed as not being maintainable. The legal representatives acquired no right in law to be brought on the record in the appellant’s place and stead. There is also no order for the cost of the appeal and miscellaneous petitions.

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