Madras High CourtCMP(MD)/785/2019allowed

A.Murugesan v. S.Apppavoo (Died)

2019-06-11Honourable Mr Justice R. Pongiappan3 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Civil Appellate Jurisdiction ) Tuesday, the Eleventh day of June Two Thousand Nineteen PRESENT The Hon`ble Mr.Justice R.PONGIAPPAN CMP(MD) Nos.785 to 787 of 2019 in S.A (MD)No.104 of 2012 A.MURUGESAN ... PETITIONER/ APPELLANT IN ALL THE PETITIONS Vs 1 S.APPPAVOO (DIED) 2 A.PALANICHAMY 3 A.SBURAMANIAN 4 A.VELUCHAMY 5 A.CHINNACHAMY ... RESPONDENTS 1 TO 5/ RESPONDENTS 1 TO 5 IN ALL THE PETITIONS 6 A.KRISHNAN 7 A.PRABHAKARAN 8 MALATHI ... PROPOSED RESPONDENTS NOS.6 TO 8/ LEGAL HEIR OF DECEASED 1st RESPONDENT IN ALL THE PETITIONS PRAYER IN CMP(MD) No.785 of 2019 :

Petition praying that in the circumstances stated therein and in the affidavit filed therewith the High Court will be pleased to condone the delay of 2089 days in filing the petition for bringing the legal heirs of the deceased 1st respondent in the above second appeal SA(MD)No.104 of 2012 and thus render justice. Prayer in CMP(MD). 786/ 2019 :

Pleased to pass suitable orders to set aside of the abatement caused due to the death of the 1st respondent and pass such further, order or other orders as this Hon'ble Court may deem fit and proper in the case and thus render justice.

Prayer in CMP(MD). 787/ 2019 :

Pleased to bring on record the proposed respondents 6 to 8 herein as the legal heirs of the deceased 1st respondent in the above SA(MD)No.104 of 2012 and rank them as respondents 6 to 8 and pass such further order or other orders as this Hon'ble Court may deem fit and proper in the case and thus render justice. Prayer in SA(MD). 104/ 2012 :

To set aside the judgment and decree dated 11.11.2010 in A.S.No.7 of 2009 on the file of Additional Subordinate Judge, Fast Track Court, Dindigul confirming the Judgement and Decree dated

9.1.2009, passed in O.S.No.97 of 2004 on the file of Principal Sub Court, Dindigul and allow this Second Appeal and thus render justice.

ORDER : These petitions coming on for orders upon perusing the petitions and the affidavits filed in support thereof and upon hearing the arguments of Mr.T.ANTONY ARUL RAJ, Advocate for the petitioner in all the petitions, the court made the following order:- These petitions are filed to condone the delay of 2089 days in filing the petition to set aside the abatement caused due to the death of the first respondent, to set aside the abatement caused due to the death of the first respondent and to bring the petitioners 6 to 8 as the legal heirs of the first respondent. 2.The short facts narrated by the petitioner in the affidavit filed along with the petitions as follows:- The petitioner is the appellant in the main second appeal. Before the trial Court, the deceased first respondent had filed a suit in O.S.No.

97 of 2004 and seeking the relief of declaration and permanent injunction. The said prayer sought for by the first respondent was granted in favour of him. Aggrieved over the same, the petitioner and his brother filed an appeal in A.S.No.7 of 2009 on the file of the learned Additional District Judge, Dindigul. But the same was dismissed after confirming the findings arrived by the trial Court in O.S.No.97 of 2004. Thereafter, the second appeal in S.A(MD) No.104 of 2012 has been preferred by the petitioner seeking for the relief to set aside the judgments and decrees passed by the courts below.

3.During the pendency of the second appeal, the learned counsel appearing for the first respondent served a copy of the memo stating that the first respondent namely S.Appavoo was died on 07.12.2012. Further, he gave particulars in respect to his legal heirs. After receiving the same, due to the communication gap, the petition to implead the legal heirs of the first respondent was not filed within the period of limitation. Hence, all the applications are now filed i.e., to condone the delay of 2089 days in filing the petition to set aside the abatement caused due to the death of the first respondent, to set aside the abatement caused due to the death of the first respondent and to bring on record the petitioners 6 to 8 as the legal heirs of the first respondent.

4.On behalf of the respondents 2 to 5 counter has not been filed. However, in the counter filed by R-6 to R-8, they were admitted that they are the legal heirs of the deceased S.Appavoo. In their counter, they have specifically stated that the suit property was purchased by their father and thereafter, this petitioners interfered with the enjoyment of the suit property so as to grab the same and therefore, their father filed a suit. Even

after concurrent findings in favour of the first respondent, the petitioner aggrieved over the decision, filed the second appeal. In otherwise, the reason stated by the petitioner is not a genuine one.

5.Upon considering the arguments advanced on either side, it is true that C.M.P(MD) No.785 of 2019 has been filed to condone the delay of 2089 days in filing the application to set aside the abatement caused due to the death of the first respondent. The said delay is not a ordinary one. Further, the reason stated by the petitioner for the said delay is not a convinced one and the reason stated by the petitioner is not supported through the substantial documents. However, as per the averments made in the counter, this appeal is preferred in respect to the title of property, which was purchased by the first respondent. So being the legal heirs of the first respondent, their contention in respect to the purchase of suit property by their father, is necessary. On the way, for better adjudication of the second appeal, it is necessary for this Court to here the case of R-6 to R-8.

6.On the other hand, if the application is dismissed it will cause much prejudice to the respondents 6 to 8 more than that of the petitioner. However, since the delay is a huge one, I am of the considered opinion that all the applications herein have to be allowed subject to the condition.

7.In the result, these petitions are allowed subject to the condition that the petitioner shall pay a sum of Rs.2,000/- (Rupees Two Thousand only) to the credit of the Hon'ble Chief Justice Relief Fund, Madurai Bench of Madras High Court, Madurai, within a period of 10 days from today.

sd/- 11/06/2019 / TRUE COPY / Sub-Assistant Registrar (C.S.) Madurai Bench of Madras High Court, Madurai - 625 023.

TO 1 THE ADDITIONAL SUBORDINATE JUDGE, FAST TRACK COURT, DINDIGUL 2 THE PRINCIPAL SUBORDINATE JUDGE, DINDIGUL.

COPY TO:THE SECTION OFFICER, (the Hon'ble Chief Justice Relief Fund) ACCOUNTS SECTION, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI.

+1. C.C. to Mr.T.ANTONY ARUL RAJ Advocate SR.No.9534 ORDER IN CMP(MD) Nos.785 to 787 of 2019 in S.A (MD)No.104 of 2012 Date :11/06/2019 MS/VR/SAR-2/13.06.2019/3P.5C