Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 1101 (MAD)

Shahidunissa v. Muthaliff & Others

2005-07-19

R.BANUMATHI

body2005
Judgment :- This revision is directed against the order dated 30.1.2002, made in I.A. No.723/1999 in O.S. No.235/1999 by the Principal District Munsif, Salem, dismissing the petition filed under Or.22 R.4 CPC, declining to implead the legal representatives of the deceased Defendant/Abdul Lathif Noori. The Plaintiff is the Revision Petitioner. 2.Plaintiff has filed the suit for Specific Performance. Case of the Plaintiff is that the Defendant entered into an oral agreement of sale of vacant site - suit property in Alagapurampudur within the Salem Corporation Limit in S.No.164/3. Oral Agreement was entered into on 16.01.1993. Sale price was fixed at Rs.13,216/-. Oral Agreement was concluded in the presence of one Balusami Naidu and one Visvanathan. According to the Plaintiff, she has paid an advance of Rs.5000/-, by way of Cheque dated 30.01.1993, drawn on Salem District Cooperative Central Bank, Cherry Road. Plaintiff and the Defendant have further agreed that the Sale Deed should be taken at an early possible date on the payment of balance of sale consideration of Rs.8,216/-. The Plaintiff was always ready and willing to perform her part of the contract. She has been requesting the Defendant to execute the Sale Deed in her favour; but the Defendant was evading to execute the Sale Deed. On 31.01.1997, the Defendant met the Plaintiff and her husband and assured to execute the Sale Deed, after receiving the balance of sale consideration. Since the Defendant failed to keep up his word, the Plaintiff had issued a Legal Notice on 21.02.1998, which was acknowledged by the Defendant. Since the Defendant had not executed the Sale Deed as agreed by him, the Plaintiff has filed the suit for Specific Performance of contract. 3.Court Summons sent to the Defendant was returned with an endorsement "died". The Plaintiff has filed I.A.No.723/ 1999 stating that since she is residing at Salem, she had not known about the death of the Defendant and she came to know about the death of the Defendant only when the summons were returned. The Defendant died in June 1998 at Dindigul leaving behind him his three sons and three daughters. Hence, seeking impleading of the legal representatives of the deceased Defendant, Plaintiff has filed I.A.No.723/1999. 4.Application was resisted by the proposed parties contending that Abdul Latif Noori died even on 4.6.1998. The Defendant died in June 1998 at Dindigul leaving behind him his three sons and three daughters. Hence, seeking impleading of the legal representatives of the deceased Defendant, Plaintiff has filed I.A.No.723/1999. 4.Application was resisted by the proposed parties contending that Abdul Latif Noori died even on 4.6.1998. According to the proposed parties, though the Plaintiff knew about the death of their father, the Plaintiff has purposely filed the suit against their father who was already dead. The application has been resisted mainly on the ground that Or.22 R.4 CPC is applicable only when the Defendant dies during the pendency of the suit and is not applicable where the Defendant has died even prior to the institution of the suit. Application is not maintainable since there had been no application to set aside the abatement nor any application to condone the delay. 5.Upon consideration of contentions of both parties, the learned District Munsif found that in all probability the Plaintiff must have known about the death of Defendant/Abdul Latif Noori. It was further held that the Plaintiff has purposely filed the suit without verifying whether the Defendant was alive or dead. In the view of the lower court, the suit filed against the dead person is not maintainable. It was further held that since the Plaintiff has not proved the suit to be within the period of limitation, the learned District Munsif dismissed the petition declining to implead the legal representatives. 6.Aggrieved over the dismissal of the application filed under Or.22 R.4 CPC, read with Sec. 151 CPC, the Revision Petitioner/Plaintiff has preferred this revision petition. Revision Petitioner is represented by counsel Mr.T.Murugamanickam. All the respondents have been served. Substituted service was also effected by publication in vernacular. But Respondents 1, 4 to 6 have not entered appearance. Respondents 2 and 3 are represented by counsel Mr.R.Tholgappian. Points urged by the Respondents 1, 4 to 6 in the lower Court had been taken into consideration for disposal of this revision. 7.Upon consideration of the contention of both sides, impugned order and other materials on record, the following points arise for consideration in this revision :- (i)Whether the petition filed under Or.22 R.4 CPC to implead the legal representatives of the Defendant (who was already dead prior to the filing of the suit) is maintainable ? 7.Upon consideration of the contention of both sides, impugned order and other materials on record, the following points arise for consideration in this revision :- (i)Whether the petition filed under Or.22 R.4 CPC to implead the legal representatives of the Defendant (who was already dead prior to the filing of the suit) is maintainable ? (ii)Whether the impugned order declining to implead the legal representatives of the deceased Defendant suffers from material irregularity, warranting interference? 8.The learned counsel for the Revision Petitioner contended that in the suit filed against the Defendant, who is already dead, there is no impediment for filing an application to implead the legal representatives, under Or.22 R.4 CPC. The learned counsel relied upon 1994 TLNJ 1, (Karuppaswamy and another Vs.C.Ramamurthi) in support of his contention. 9.For better appreciation of the contentious points urged, it is necessary to refer to certain relevant dates :- Date of oral agreement of sale - 16.01.1993 Cheque for Rs.5,000/- issued on - 30.01.1993 Plaintiff alleged to have met the Defendant and requested for sale - 31.01.1997 Date of issuance of Legal Notice - 21.02.1998 Date of suit - 15.03.1999 Abdul Latif Noori died during - June 1998 10.The suit was filed nearly nine months after the death of Abdul Latif Noori. Strangely, the Plaintiff has not taken any steps to file the suit against the sons and daughters of Abdul Latif Noori. According to the Plaintiff, Abdul Latif Noori died in Dindigul and hence the Plaintiff had no knowledge about the death of Abdul Latif Noori. By a reading of the cause title in the petition, it is seen that only the first and second Respondents are residing in Dindigul. Respondents 3 to 7 are residing at No.17, Cherry Road, Opposite Salem Government Arts College, Salem 636 007. The Plaintiff is also residing in the same place viz., D.No.247, Cherry Road, Salem-1. When the Plaintiff is residing in the same area as that of the Respondents 3 to 6, it is quite improbable that the Plaintiff had not known about the death of Abdul Latif Noori. Filing of the suit against a dead person is not appreciable. The suit had been casually filed in 1999 against a dead person. 11.Abdul Latif Noori died on 04.06.1998. But the said suit has been filed on 15.03.1999, only nine months after his death. Filing of the suit against a dead person is not appreciable. The suit had been casually filed in 1999 against a dead person. 11.Abdul Latif Noori died on 04.06.1998. But the said suit has been filed on 15.03.1999, only nine months after his death. The reason that the Plaintiff had no knowledge about the death of the Defendant is not satisfactory. 12.The learned counsel for the Revision Petitioner has relied upon 1994 TLNJ 1, (Karuppaswamy and another Vs.C.Ramamurthi) in support of his contention. But in the said suit based on the promissory note, the application filed to implead the legal representatives of the deceased Defendant, who died about six months prior to the filing of the suit, was allowed by the High Court in view of Sec.21 of the Limitation Act. That decision of the High Court was upheld by the Supreme Court finding that the High Court was right in invoking the proviso to sub Section (1) of Section 21 of the Limitation Act. The said case stands on different factual footings. The suit was filed on the basis of the promissory note. The Defendant died only about six months prior to the filing of that suit. The objections raised for impleading the legal representatives was mainly regarding the limitation. Finding that there is nothing to suggest that the Plaintiff was negligent in not impleading the legal representatives of the Defendant, the Supreme Court has upheld the decision of the High Court. A finding was recorded by the High Court that the Plaintiff had taken proper action and acted in good faith and that there was no material to attribute negligence to the Plaintiff. The case in hand stands on different footing, wherein the Plaintiff had filed the suit nearly nine months after the death of the Defendant. As noted earlier, there was every reason for the Plaintiff to know about the death of the Defendant Abdul Latif Noori. 13.From the facts and circumstances of the case, the following three aspects, which emerge, are to be kept in view:- (a) The suit is based on an oral agreement of Sale dated 16.01.1993; (b) Notice was issued nearly after five years on 21.02.1998. The Defendant is alleged to have received notice on 24.02.1998. 13.From the facts and circumstances of the case, the following three aspects, which emerge, are to be kept in view:- (a) The suit is based on an oral agreement of Sale dated 16.01.1993; (b) Notice was issued nearly after five years on 21.02.1998. The Defendant is alleged to have received notice on 24.02.1998. When the Defendant had not come forward to execute the Sale Deed, the Plaintiff had not immediately filed the suit; - and - (c) From February 1998 to March 1999, till the filing of the suit, no acceptable explanation is forthcoming for not filing the suit. In view of the above, reason stated by the Plaintiff that she had no knowledge about the death of the Defendant cannot be accepted. The Plaintiff had not convincingly established as to why there is so much delay in filing the suit. 14.Taking into consideration the relevant facts and circumstances of the case, the learned District Munsif has rightly declined to implead the legal representatives of Defendant Abdul Latif Noori. The impugned order does not suffer from any jurisdictional error or material irregularity warranting interference. This revision has no merits and is bound to fail. 15.For the reasons stated above, order made in I.A. No.723/1999 in O.S. No.235/1999 (dated 30.1.2002), by the Principal District Munsif, Salem is confirmed and this revision is dismissed. Consequently, CMP No.10566/2002 is also dismissed. In the circumstances of the case, there is no order as to costs.