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2004 DIGILAW 59 (AP)

S. A. Kabeer v. Kareemunnisa Begum (died)

2004-01-22

P.S.NARAYANA

body2004
P. S. NARAYANA, J. ( 1 ) THESE applications are filed to condone the delay of 128 days in preferring an application to bring on record the Legal Representatives of the deceased third respondent on record, for setting aside the abatement to bring the legal representatives of deceased third respondent and further to bring on record the proposed Respondents 5 to 9 as legal representatives of the deceased Respondent no. 3. ( 2 ) SRI Raghuram representing Sri K. S. Gopala Krishnan submitted that in view of the reasons explained in Para 3 of the affidavit in support of these applications, these applications are to be ordered. ( 3 ) MRS. Shobha, learned Counsel representing Sri M. Jagapathi Counsel representing respondents had opposed the matter saying that the reasons explained in the affidavit in support of the applications are not sufficient to condone the delay. ( 4 ) SRI P. Vidya Sagar, the learned counsel for the proposed Respondent Nos. 5 to 9 had taken this Court through the contents of this affidavit and had mentioned that in view of the close relationship between the parties, it cannot be said that there is sufficient cause for condoning the delay, especially in view of the allegations made in para 3 of the affidavit. ( 5 ) THE learned Counsel in all his fairness submitted that in such matters Courts, may have to be liberal, but liberality cannot be stretch too far, in condoning the delay, where absolutely there is no explanation at all in the affidavit filed in support of such application. ( 6 ) HEARD the Counsel on record. ( 7 ) THE applications referred supra were moved by the petitioner/appellant to bring on record the proposed parties Respondent nos. 5 to 9 as legal representatives of the deceased third respondent. ( 8 ) IT was pleaded in Para 3 that third respondent died leaving behind the proposed respondent Nos. 5 to 9 and the same was brought to the notice of this Court that the third respondent died on 26. 8. 2001, but despite the same the other contesting respondents had not furnished the details of the legal representatives. It was further stated that after due enquiry, the petitioner found out that the Respondent Nos. 5 to 9 and the same was brought to the notice of this Court that the third respondent died on 26. 8. 2001, but despite the same the other contesting respondents had not furnished the details of the legal representatives. It was further stated that after due enquiry, the petitioner found out that the Respondent Nos. 5 to 9 are the necessary proposed parties, the legal representatives of deceased third respondent and hence, in the course of ascertaining these names there was some delay. ( 9 ) NO doubt, Sri P. Vidya Sagar had contended that the stand taken by the petitioner/appellant cannot be a correct stand in view of the material available on record. ( 10 ) HENCE, in the light of the respective pleadings of the parties, the close relationship of the parties in clearly established. ( 11 ) THE Apex Court in Mithailal dalsangar Singh v. Annabai Devram Kini at para 2003 (1) Decisions Today 925 (SC); held:"the Courts have to adopt a justice oriented approach dictated by the upper most consideration that ordinarily a litigant ought not to be denied an opportunity of having a, Us determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitle himself from seeking the indulgence of the court. The opinion of the Trial Judge allowing a prayer for setting aside abatement and his finding on the question of availability of sufficient cause within the meaning of sub- rule (1) of Rule (9) of Order 22 and of section 5 of the Indian Limitation Act, 1963 deserves to be given weight, and once arrived at would not normally be interfered with by superior jurisdiction. "it is no doubt true from the facts of the case, the petitioner could have been diligent enough, but that itself may not amount to gross negligence and hence inasmuch as normally in matters of this nature where the legal representatives are to be brought on record, technical considerations need not be seriously considered, and hence, in the light of the explanation given by the petitioner in para 3 of the affidavit, I am satisfied that there is sufficient cause for condoning the delay and accordingly, the delay is hereby condoned and the order of the abatement is hereby set aside. Accordingly, the application to bring on record the legal representatives also is hereby ordered. Accordingly, the application to bring on record the legal representatives also is hereby ordered. ( 12 ) ACCORDINGLY all the CMPs. are allowed. No costs.