Research › Search › Judgment

Karnataka High Court · body

2000 DIGILAW 828 (KAR)

Natarajan v. D. Rajendran

2000-12-11

KUMAR RAJARATNAM

body2000
ORDER Kumar Rajaratnam, J.—The civil revision petitions are taken up with the consent of parties. 2. The petitioner being aggrieved by the order dated 22nd of December, 1999 passed by the First Additional District and Sessions Judge, Bangalore Rural District, Bangalore in Interlocutory Application Nos. III and IV in M.V.C. No. 128/1995, has preferred these revision petitions. 3. The only son of Natarajan and Kanakarangitham died in a road accident. The said parents filed a claim petition against the respondents in M.V.C. No. 128/1995. Unfortunately, while the matter was pending before the Tribunal both the parents died. Consequently the petitioner Girija Gowri the only legal heir filed applications I.As. III and IV to set aside the abatement and to condone the delay in bringing the legal representative of the deceased claim petitioners in Court. There was only a delay of one day. That was rejected, by an order dated 22.12.1999. The order reads as follows: None present. No application under Order 22, Rule 9, C.P.C. filed, the date of death of petitioner No. 1 is also not given. Hence the application under Order 22, Rule 4, C.P.C. or under Order 22 does not arise. Hence I.A. III and TV rejected. Hence petition abates. 4. Aggrieved by this the only legal heir of the claimants has preferred these revision petitions. 5. The Tribunal did not notice that during the pendency of the matter the father (first petitioner) died. The same was reported to the Court. Thereafter the mother of the petitioner who was the second petitioner proceeded with the case. She also died on 3.8.1999 leaving the petitioner as the only legal heir. In these circumstances the petitioner filed two applications one for setting aside the abatement and the other for condonation of delay if any in filing the legal representative application. 6. Both these applications were rejected by the Trial Court on hyper-technical ground that instead of making the application under Order 22 Rule 9, C.P.C. the application was made under Order 22 Rule 4 of the C.P.C. 7. 6. Both these applications were rejected by the Trial Court on hyper-technical ground that instead of making the application under Order 22 Rule 9, C.P.C. the application was made under Order 22 Rule 4 of the C.P.C. 7. In a tragic case like this where the only son died in a road accident and when both the claimants during the claim petition have died, it is the duty of the Court to read the prayer in the application and not reject the application since it was not under Order 22 Rule 9, C.P.C. The Court below was also in error in stating that the date of death of the first petitioner was not given. According to the learned Counsel for the petitioner that the first petitioner died during the pendency of the proceedings and the second petitioner (wife) was permitted to continue with the proceedings. This fact was brought to the notice of the Court. Obviously, the Court was aware when the first petitioner had died. Otherwise the Court would not have permitted the second petitioner (wife) to prosecute the matter before the Tribunal. 8. It would not have been improper for the Court to have informed the Advocate to incorporate the correct provision of law. In fact in a case where a young Advocate appears and makes an application for setting aside the abatement and (2) for condonation of delay, it is the duty of the Court to consider the substance of the matter rather than to adjudicate on the mere technicality under which the application was made. 9. The applications clearly indicate that the prayer for setting aside the abatement and for condonation of delay if any and for impleading only legal heir as the petitioner in the claim petition. When the applications clearly indicate the prayer correctly and also indicate that the application was made under Order XXIX. It is surprising that the Court has rejected both the applications and held that the claim petition itself abates. 10. In a similar matter under Order 9 Rule 1, C.P.C., the Supreme Court pronounced in Ram Sumiran and Others Vs. D.D.C. and Others, AIR 1985 SC 606 , as follows: The only ground on which the High Court has dismissed the writ petition is that it has abated as a whole against respondent Nos. 10. In a similar matter under Order 9 Rule 1, C.P.C., the Supreme Court pronounced in Ram Sumiran and Others Vs. D.D.C. and Others, AIR 1985 SC 606 , as follows: The only ground on which the High Court has dismissed the writ petition is that it has abated as a whole against respondent Nos. 4 and 5 since it abated against respondent No. 5 on account of the legal representatives of respondent No. 5 not having been brought on record within a period of 90 days after the death of respondent No. 5 which occurred on 21.11.1976. It is true that no steps were taken by the appellants for bringing the legal representatives of the deceased respondent No. 5 on record for about 6 years even though according to respondent No. 4 the appellants knew about the death of respondent No. 5. But merely because no application was made by the appellants for bringing the legal representatives of the deceased respondent No. 5 on record we do not think that in the circumstances of the present case that would be a valid ground for refusing to grant the application of the appellants for setting aside the abatement and bringing the legal representatives of the deceased respondent No. 5 on record because the appellants are admittedly from the rural area and in a country like ours where there is so much poverty, ignorance and illiteracy, it would be fair to presume that everyone knows that on death of a respondent, the legal representatives have to be brought on record within a certain time. The ends of justice require that the application for bringing the legal representatives of the deceased respondent No. 5 should have been granted. We accordingly allow the appeal, set aside the order of the High Court and direct that the abatement, if any, shall be set aside and the legal representatives of deceased respondent No. 5 shall be brought on record and the writ petition shall be remanded to the High Court for disposal according to law. We may make it clear that in making this order we must not be presumed to have expressed any opinion on the merits of the controversy raised in the writ petition. It will be for the High Court to decide the writ petition according to law. We may make it clear that in making this order we must not be presumed to have expressed any opinion on the merits of the controversy raised in the writ petition. It will be for the High Court to decide the writ petition according to law. We would request the High Court to dispose of the writ petition at a very early date and as far as possible, before the end of February, 1985. The expert order of stay made by us will stand vacated. Appeal allowed. 11. In this case admittedly the applicant was ignorant and illiterate. The applicant's lawyer was not sure what rule applied under Order 22, C.P.C. It is stated that there is delay of one day in filing the application under Order 22, Rule 9, C.P.C. 12. Heard the learned Counsel for the respondent. The delay stands condoned. Accordingly the impugned order is set aside and abatement is set aside and the petitioner shall be brought as the legal representative of the claim-petitioners. The matter is remanded to the First Additional District and Sessions Judge, Bangalore Rural District, Bangalore in M.V.C. No. 128/1995 for disposal in accordance with law. 13. The parties are directed to be present in Court on the 15th of January, 2001 with the copy of this order. The Trial Court is directed to dispose of the claim petition as expeditiously as possible in accordance with law. All contentions are left over. 14. The civil revision petitions are disposed of accordingly.