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2001 DIGILAW 1027 (MAD)

Rajamani v. Pachaiammal

2001-09-06

M.KARPAGAVINAYAGAM

body2001
Judgment :- 1. The order dismissing the application filed by Rajamani, the petitioner herein, the son of the plaintiff in O.S. No. 256 of 1993, to condone the delay of 1519 days in seeking to set aside the abatement is under challenge before this Court in this Civil Revision Petition. 2. The petitioners mother filed a suit in O.S. No. 256 of 1993 against the respondent for partition and separate possession. Pending suit, she died on 29.1.1994. When the case was listed in the year 1999 for trial, the petitioner, the son of the plaintiff, filed an application in I.A. No. 2010 of 1999 to condone the delay of 1519 days in seeking to set aside the abatement on the ground that the death of the plaintiff was not known to him, since he was staying in outstation. 3. On behalf of the respondent/defendant, a counter was filed stating that the above reason was false, since on the date of death of the plaintiff, the petitioner was at the residence of the plaintiff, his mother, and he participated in the cremation and performed funeral obsequies and as such, the application was liable to be dismissed. 4. The trial Court, holding that there is no sufficient reason for the delay, dismissed the application as a belated one. 5. Challenging the same, the present Civil Revision Petition has been filed. 6. The learned Counsel for the petitioner while assailing the impugned order would contend that a liberal approach is to be shown in the matter of condoning the delay and mere technicalities should not be allowed to stand in the way of rendering justice. 7. The learned Counsel appearing for the respondent, in justification of the impugned order, would contend that the reasonings given in the impugned order are valid and there is no ground to interfere with the said order. 8. I have gone through the impugned order and other documents filed by both parties. 9. On perusal of the documents and on consideration of the submissions made by the Counsel for the parties, I am of the view that the reason given by the petitioner for the huge delay of 1519 days is not only not acceptable, but also not bona fide. 10. 9. On perusal of the documents and on consideration of the submissions made by the Counsel for the parties, I am of the view that the reason given by the petitioner for the huge delay of 1519 days is not only not acceptable, but also not bona fide. 10. According to the petitioner, in the affidavit filed before the lower Court, he was not informed about the death of the plaintiff, as he was away in another town and as such, there was a delay. But, in the oral evidence, the petitioner stated that he participated in cremation. Thereafter, his health was not all right and therefore, he had to stay in Kumarapalayam. This statement made before the Court by the petitioner is quite contrary to his stand taken in the affidavit. 11. Furthermore, as pointed out by the trial Court, no records were produced before the trial Court to show that he was bedridden and hospitalised at Kumarapalayam. 12. Under those circumstances, 1 do not find any ground to hold that the impugned order would suffer from any infirmity. 13. Therefore, the Civil Revision Petition is dismissed with costs throughout. Consequently, C.M.P. No. 21011 of 1999 is also dismissed.