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2005 DIGILAW 881 (MAD)

A. Selvi & Another v. VersusBaskaran & Others

2005-06-18

R.BANUMATHI

body2005
Judgment :- This revision is preferred against the order of learned District Munsif, Thiruthuraipoondi, made in I.A.No.113/2002 in O.S.No.63/1989, dismissing the application filed under Sec.5 of the Limitation Act, declining to condone the delay of 240 days in filing the application to implead the legal heirs. 2. It is necessary to refer to the brief facts: The Plaintiff Dhanalakshmi Ammal (since dead) has filed O.S.No. 63/1989 for declaration of her possessory right and for delivery of vacant possession relating to a house site in Thiruthuraipoondi in S.No.21/3. During the pendency of the suit, on 20.1.1994 Dhanalakshmi Ammal died. On the strength of the Registered Will executed by her, the beneficiaries under the will viz., the Plaintiffs, Anbazhagan and Baskaran have been brought on record. On 27.1.2001, the Plaintiff Anbazhagan died in a car accident. The application to bring on the legal heirs of Anbazhagan ought to have been filed within ninety days. But the application was not filed in time. 3.I.A.No.113/2003: This application was filed to condone the delay in filing the legal heir petition and, to set aside abatement and to bring on record the legal heirs, petitions under Or.22 R.3 CPC were filed on 26.2.2002. In seeking for condonation of delay, in the supporting affidavit, the Revision Petitioner has stated that she was under the mental shock and agony due to the death of her husband and that she could not contact the counsel to give proper instructions to implead themselves as the Plaintiffs and that the delay of 240 days in filing the application to bring on record the legal representatives is not wanton or wilful. 4. The application was resisted by the Defendants contending that the reason for delay has not been properly explained. According to the Defendants, the application ought to have been filed within ninety days and thereafter, within thirty days to set aside the abatement. The reason stated for the delay in filing the application is not satisfactory and hence the petition cannot be allowed. 5. Upon consideration of the contentions of both parties, the learned District Munsif dismissed the application on the ground that the delay has not been properly explained. Pointing out that the suit is of the year 1989 and condoning the delay and allowing the application would further prolong the delay proceedings, the trial Court has declined to condone the delay and dismissed the applications. 6. Pointing out that the suit is of the year 1989 and condoning the delay and allowing the application would further prolong the delay proceedings, the trial Court has declined to condone the delay and dismissed the applications. 6. Aggrieved over the order of dismissal of the petition and declining to condone the delay, the Revision Petitioners have preferred this revision. The learned counsel for the Revision Petitioners has submitted that sufficient reason has been stated for the delay but the lower Court erred in not taking note of the same. Further, it is submitted that misquoting of the provision cannot be an embargo for not condoning the delay. It is also submitted that in refusing to allow the application, there has been improper exercise of discretion and the order is liable to be set aside. 7. Countering the arguments, the learned counsel for the Respondent has submitted that as the reason for the delay has not been properly explained, the lower Court has rightly dismissed the application and that there is no reason warranting interference. 8. Plaintiff Anbazhagan died on 27.1.2001. In the supporting affidavit, the first Revision Petitioner has stated that she was shocked and that she could not contact her counsel to give instructions to implead themselves as legal heirs. Loss of the family head is a great loss to the family. Quite naturally, family members and the first Revision Petitioner must have been mourning the death. Being a woman, she would not have been in a position to contact her counsel. Equally, she would not have had the proper guidance and counselling to approach the counsel. The reason stated for the delay that she was not able to contact her counsel is convincing. The lower Court erred in discarding the same. 9. The main reason pointed out by the lower Court is that the suit is of the year 1989 and if delay is condoned and the petition under Or.22 R.3 is to be ordered, it would further prolong the trial proceedings. This approach of the lower Court is erroneous. In the application filed for impleading the legal heirs and the petition to set aside the abatement and the application to condone the delay, it is always desirable to give sufficient opportunity to the parties to implead themselves. This approach of the lower Court is erroneous. In the application filed for impleading the legal heirs and the petition to set aside the abatement and the application to condone the delay, it is always desirable to give sufficient opportunity to the parties to implead themselves. In such circumstances, while dealing with the application to implead the legal heirs and the application under section 5 of the Limitation Act, liberal approach is to be adopted. Strict approach would cause failure of justice. When sufficient reason has been stated, the Lower Court ought to have exercised the discretion in condoning the delay. 10. Such refusal has resulted in shutting the opportunity to the Revision Petitioners, which course cannot be adopted. The impugned order suffers from material irregularity and is to be set aside. 11. For the foregoing reasons, order passed in I.A.No.113/ 2002 in O.S.No.63/1989 by the learned District Munsif, Thiruthuraipoondi is set aside and this revision is allowed. Consequently, CMP 12915 of 2003 is closed. In such circumstances of the case, there is no order as to costs. 12. I.A.No.113/2002 is allowed and the delay in filing the application to set aside abatement is condoned. The learned District Munsif, Thiruthuraipoondi is directed to take the application to set aside the abatement and the legal heir petition, on file and dispose of the same in accordance with law.