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2005 DIGILAW 746 (MAD)

Nesammal & Others v. Kuttyappi & Others

2005-04-27

R.BANUMATHI

body2005
Judgment :- (PRAYER: Revision filed against the order and decretal order dated 20.12.2002 made by the learned II Additional District Munsif of Kuzhthurai in I.A.No.619/2001 in O.S.No.546/1989.) This revision is preferred against the order and decretal order dated 20.12.2002 made by the learned II Additional District Munsif, Kuzhthurai in I.A.No.619/2001 in O.S.No.546/1989, dismissing the Petition filed under Or.22 R.4 CPC. The Plaintiff is the Revision Petitioner. 2. The Revision Petitioner/Plaintiff has filed O.S.No.546/1989 for partition and separate possession of the Plaint Schedule Properties. From the available materials, relationship of the parties is not discernible. For disposal of this revision, suffice it to note that D-9 and D-10 are brothers. D-9 died on18.4.1999. I.A.No.619/ 2001 was filed by the Plaintiffs to bring on record the Legal Heirs of deceased 9th Defendant as additional Defendants 18 to 22 in the suit. Defendants 18 to 22 are the sons, daughters and wife of the deceased 9th Defendant. 3. The Petition for impleading the legal heirs of the 9th Defendant was resisted by the Defendants, contending that the 9th Defendant died even on 18.4.1999 and that the application filed in November 1999 is barred by limitation. 4. Finding that for the Petition filed under Or.22 R.4 CPC, Art.120 of the Limitation Act applies and that the period of limitation is ninety days which starts from the date of death viz., 18.4.1999, the learned District Munsif found that the application filed after the period of limitation is not maintainable and dismissed the Petition. 5. Aggrieved over the dismissal of the Petition, Plaintiffs have preferred this revision. Notice has been sent to the proposed parties. Only one of the Respondent viz., Palammal has been served. Notice sent to other proposed parties were returned unclaimed. Service to Respondents 18 to 21 was held sufficient. Since the suit is of the year 1989 and the revision is of the year 2003, revision Petition was taken up for final hearing. Heard the counsel for the Revision Petitioner/Plaintiff. 6. The learned counsel for the Revision Petitioner/ Plaintiff submitted that the 10th Defendant who is the brother of 9th Defendant is already on record and hence there is no abatement as against 9th Defendant. Submitting that since the 10th Defendant - brother of 9th Defendant is already on record, Or.22 R.4 CPC would not be applied, the learned counsel has assailed the impugned order as erroneous. Submitting that since the 10th Defendant - brother of 9th Defendant is already on record, Or.22 R.4 CPC would not be applied, the learned counsel has assailed the impugned order as erroneous. Further submitting that the proposed parties/ legal heirs of 9th Defendant have not contested the application, it is submitted that the lower Court ought to have allowed the application. The learned counsel has contended that when 10th Defendant – brother of 9th Defendant is already on record, residuary Art.137 of the Limitation Act would apply and the trial Court erred in finding that only Art.120 of the Limitation Act would apply. 7. Upon consideration of the submission and materials on record the point that arises for consideration is: - whether the trial Court was right in dismissing the application and holding that the suit as against 9th Defendant has abated, and whether the impugned order is sustainable? 8. Assailing the impugned order, the learned counsel for the Plaintiff has submitted that when 10th Defendant – brother of 9th Defendant was already on record, impleading of the legal heirs of deceased 9th Defendant does not fall under Or.22 R.4 (1) CPC. The contention that the Plaintiffs were under the impression that right to sue survives against 10th Defendant has no merits. The proposed Defendants 18 to 22 are the sons, daughters and wife of deceased 9th Defendant. They are the Class I heirs. 10th Defendant - brother is Class II heir. Hence right to sue does not survive as against 10th Defendant – Class II heir. Or.22, R.4 (1) CPC provides that where one or two or more Defendants dies and the right to sue does not survives, an application can be made for making the legal representatives of such deceased Defendant parties to the suit. Under Or.22 R.4(1), application ought to have been filed within a period of ninety days. Application to bring on record the legal representatives of deceased is governed by Art.120 and not by Residuary Art.137. Time runs from the date of death i.e. 18.4.1999. The period is ninety days. Application filed in November 1999 (numbered in 2001) is barred by limitation. But that cannot be the reason for dismissing the application. Application to bring on record the legal representatives of deceased is governed by Art.120 and not by Residuary Art.137. Time runs from the date of death i.e. 18.4.1999. The period is ninety days. Application filed in November 1999 (numbered in 2001) is barred by limitation. But that cannot be the reason for dismissing the application. Instead of dismissing the Petition holding that the suit abates as against 9th Defendant, the learned District Munsif ought to have afforded sufficient opportunity to the Revision Petitioners/Plaintiffs to file application to set aside abatement and to file an application under Section 5 of the Limitation Act to condone the delay in filing the application. 9. According to the provisions in Or.22 R.3 (2) and R.4, if an application is not filed within the prescribed time to make the legal representative of a deceased Plaintiff or appellant or a deceased Defendant or Respondent party as the case may be, the suit or appeal abates. No doubt even after such abatement an application may be made within sixty days thereof to set aside the abatement for valid reasons under Or.22, R.9. The Court may entertain the application to set aside the abatement even after the sixty days if sufficient cause is shown for the delay. No doubt such application for setting aside the abatement and condoning the delay in filing the application to bring on record the legal representatives of the deceased 9th Defendant was not made. But the suit being one for partition and separate possession, the learned District Munsif ought to have directed the Plaintiffs to make out necessary applications. Dismissal of the Petition by the trial Court is not in the interest of justice and is to be set aside. 10. In that view of the matter, the order made in I.A.No.619/2001, is to be set aside. The Revision Petitioners/Plaintiffs are to be given an opportunity directing them to file the applications to set aside abatement caused by the death of 9th Defendant and the application to condone the delay in filing the applications. 11. In the result, the order made by the learned II Additional District Munsif, Kuzhthurai in I.A.No.619/2001 in O.S.No.546/1989, is set aside and this revision is allowed. I.A.No.619/2001 is ordered to be restored to file. 11. In the result, the order made by the learned II Additional District Munsif, Kuzhthurai in I.A.No.619/2001 in O.S.No.546/1989, is set aside and this revision is allowed. I.A.No.619/2001 is ordered to be restored to file. The Revision Petitioners/Plaintiffs are directed to file application u/s 5 of the Limitation Act for condoning the delay in bring on record the legal representatives of the deceased 9th Defendant and application to set aside the abatement caused by the death of 9th Defendant. On filing of those applications, the trial Court is directed to dispose of them in accordance with law. In such circumstances of the case, there is no order as to costs.