Sengeni v. Kamalam

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 29.03.2016

CORAM

THE HONOURABLE Mr. JUSTICE P.R.SHIVAKUMAR C.R.P (PD) No.1006 of 2016 & C.M.P.No.5637 of 2016

1. Sengani

2. Murugan ... Petitioners vs.

1. Kamalam

2. Saraswathi Bommi (died) ... Respondent Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decretal order of the learned Principal District Munsif, Puducherry dated 18.02.2016 in I.A.No.832 of 2012 in O.S.No.104 of 2009.

For Petitioners : M/s.Sai Bharath and Ilan ----

ORDER

In a suit, the second defendant died and a memo dated 28.04.2011 was filed intimating the death of the second defendant on 31.01.2011. Thereafter, despite the intervention of the summer

vacation, the LR petition came to be filed on 22.06.2011. However, the fact remains that by the time the LR petition was filed, the suit as against the deceased second defendant stood abated by the passage of 90 days from the date of death of the second defendant. Despite the said lacuna, the trial Court numbered the application and proceeded with the enquiry. During the course of enquiry and before orders could be passed in that application, the plaintiffs got proper legal advise, filed an application for setting aside the abatement caused by the death of the second defendant and also filed an application to condone the delay in filing the application to set aside abatement.

2.

The learned trial Judge chose to take up the application for condonation of delay alone and passed the impugned order dated 18.02.2016 condoning the delay of 265 days in filing the application under Order XXII Rule 9 C.P.C to set aside the abatement. The learned trial Judge accepted the contention of the plaintiffs that they were of the impression that if the petition for impleading the LRs was filed within 90 days from the date of knowledge of death of the second defendant there would be no abatement and that such a wrong legal advise made them not to file an application to set aside abatement under Order XXII Rule 9 C.P.C along with the LR

application under Order XXII Rule 4 C.P.C and that only after getting a proper legal advice, they chose to rectify the defect by approaching the Court with the applications under Section 5 of the Limitation Act for condoning delay in filing the petition to set aside abatement and the petition to set aside abatement under Order XXII Rule 9 C.P.C. The Court below, by the impugned order, allowed the application filed under Section 5 of the Limitation Act, accepting the reason assigning in the affidavit to be genuine and valid and thereby condoning the delay of 265 days in filing the application to set aside abatement. 3.

The learned counsel for the petitioner has made an attempt to contend that since the LR application was filed before ever the application for setting aside abatement was filed, the plaintiffs should have withdrawn that application and filed a fresh application along with the application to set aside abatement and the application to condone the delay in filing the application to set aside the abatement. This Court is not in a position to accept the above said far-fetched contention made by the learned counsel for the petitioners. The said contention appears to be hyper technical. The mistake of the Court in numbering the LR application despite the fact that the averment made in the supporting affidavit revealed that the suit as against the second defendant had abated, when the LR

application was not accompanied by an application to set aside abatement, has led to misconception entertained by the plaintiff regarding the date of abatement of the suit and the same has been sought to be rectified.

4.

Subsequently, what the plaintiff has done is to rectify the irregularity committed in filing of the application to implead the LRs, by the filing of the applications to set aside the abatement and to condone the delay in filing the application to set aside abatement. In such cases, it shall be proper for the trial Court to consider all the applications together instead of taking up the applications one by one. On several occasions, this Court has issued directions to the Courts subordinate to this Court to the effect that in case of applications to condone delay in filing application to set aside abatement, application to set aside abatement and application for impleading LRs are filed, all the three applications should be numbered, heard together and disposed of.

In case, application under Section 5 of the Limitation Act is dismissed, the other two applications are to be dismissed or rejected, as barred by limitation. In case, the Section 5 application is allowed, then the application to set aside abatement has to be decided on merit. In case, the application to set aside abatement is dismissed, the LR application has to be dismissed, as out of time.

case, the set aside abatement is allowed, the LR application is to be decided on merit. All the orders can be consolidated and incorporated in one and the same order in order to save the time of the Court from dwelling on unnecessary rituals of numbering one petition alone, relegating the numbering and dispose of the other petitions to a future date. The courts below shall scrupulously follow the above said directions.

5.

Coming to the facts of the case, this Court does not find any defect or infirmity in the order challenged in the revision and the revision deserves to be dismissed at the threshold. 6.

Accordingly, the Civil Revision Petition is dismissed. The trial Court is directed to take up both the applications under Order XXII Rule 9 C.P.C and Order XXII Rule 4 C.P.C together and dispose of the same by a common order. No costs. Consequently, connected miscellaneous petition is closed.

29.03.2016 Index: Yes/No Internet: yes/No srn

P.R.SHIVAKUMAR.J srn To The Principal District Munsif, Puducherry C.R.P (PD) No.1006 of 2016 & C.M.P.No.5637 of 2016 29.03.2016