Govindarajan v. R. Soundhararajan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.07.2020 CORAM: THE HONOURABLE Mr.JUSTICE R.SUBRAMANIAN and CMP.No.4920 of 2018 1.Govindarajan 2.Lingusamy ... Petitioners Vs.
1.R.Soundhararajan 2.R.Selvaraj 3.R.Ravichandran .. Respondents Prayer : Civil Revision Petition filed under Section 115 of CPC, to et aside the fair and decreetal order in I.A.No.269 of 2017 in O.S.No.271 of 2008 on the file of the District Munsif, Udumalpet, dated 21.12.2017. For Petitioners : Ms.J.Prithivi For Respondents : Mr.R.Sreerangan
ORDER
The plaintiffs in O.S.No.271/2008, aggrieved by the dismissal of their application refusing to condone the delay in filing the application for setting aside the abatement caused by the death of the sole defendant in this suit, have come up with this revision.
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2. It is not in dispute that the sole defendant in the suit died on 05.09.2014, and a memo was filed by the counsel for the defendant reporting the death of the sole defendant on 10.02.2015. However, no steps were taken for a considerable long time and eventually a petition in I.A.No.269/2017 was filed by the plaintiffs on 24.01.2017 with a delay of 781 days, to bring on record the legal representatives of the deceased sole defendant. The application to condone the delay, was resisted by the proposed parties in the suit, who are the legal representatives of the deceased, contending that the plaintiffs have not shown sufficient cause for the condonation of the delay. According to them, a memo was filed even on 10.02.2015, and despite filing the memo, no steps were taken by the plaintiffs for more than 700 days. The trial Court concurred with the proposed parties 2 to 4 in the suit and dismissed the application. Aggrieved, the plaintiffs have come up with this revision petition.
3. I have heard Ms.J.Prithivi, learned counsel for the petitioner and Mr.R.Sreerangan, learned counsel for the respondents. 2/5
4. Though, in the petition, it is stated that the delay is 1732 days, on proper calculation, it is seen that the delay is only 780 days and not 1732 days as stated in the affidavit filed in support of the application. The trial Court has dismissed the application on the ground that despite the memo having been filed in compliance under Order XXII Rule 10A of CPC., informing the death of the sole defendant even on 10.02.2015, the plaintiffs have not taken steps to have the abatement set aside.
5. The main suit is one for partition. Even if the present suit is dismissed as having abated, it is open to the plaintiff to file an another suit for partition. In matters of delay in setting aside the abatement, both this Court and the Hon'ble Supreme Court have consistently held that the Courts must adopt the liberal approach. No doubt, there is some negligence on the part of the plaintiffs. We do not find any distinct advantage derived by them by delaying in filing the application. It cannot be said that the delay was caused with a malafide intention. I am therefore of the considered opinion that the trial Court should have adopted a more liberal approach and condoned the delay, instead of driving the parties to a fresh litigation having regard to the fact that the present suit is nearly 12 years old now. In view 3/5
of the above, the order of the trial Court is set aside and the delay in seeking to set aside the abatement caused due to death of the sole defendant in O.S.No.271/2008 is condoned.
6. Accordingly, this Civil Revision Petition stands allowed. I.A.No.269/2017 will stand allowed, but subject to the payment of cost of Rs,5,000/- to the counsel appearing for the respondents before this Court, on or before 28.08.2020, failing which, this Civil Revision Petition will stand dismissed without further reference to this Court. Consequently, connected miscellaneous petition is closed.
28.07.2020 ds Index : Yes/No Internet : Yes / No Speaking order / Non-speaking order To:
1.The District Munsif Udumalpet.
2.The Section Officer VR Section, High Court, Madras.
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R.SUBRAMANIAN.J., ds 28.07.2020 5/5