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2012 DIGILAW 2432 (MAD)

V. Durairaj v. P. Aranganatham Pillai

2012-06-14

G.RAJASURIA

body2012
JUDGMENT:- 1. Animadverting upon the order dated 08.12.2006 passed in I.A.SR No.17532 of 2006 in O.S.No.1396 of 1994 by the learned Principal District Munsif, Kallakurichi, this civil revision petition is focussed. 2. When the matter came up for hearing, Mr. D. Babu Varadarajan, the learned counsel for the petitioners and Mr. S. Sounthar, the learned counsel for the fourth respondent were present, Heard both. 3. I am of the considered view that no notice to the other respondents who happened to be the legal representatives of the original deceased defendant Aranganatham Pillai is required. The fourth respondent also is one among the L.Rs. of the deceased Aranganatham Pillai. 4. The short point for consideration is as to whether the trial Court was justified in simply returning the application filed under Order 22 Rule 4 of CPC read with Section 151 CPC for impleading the L.Rs. of the sole defendant Aranganatham Pillai in the suit, when Aranganatham Pillai himself died only on 30.11.2006, on the ground that the suit got abated by 08.12.2006. The fact remains from the perusal of the available records that the Court simply and unjustifiably returned the said I.A. for impleading the L.Rs. of the sole defendant and dismissed the suit on the very same day as though the suit got abated. 90 days time was available for the plaintiffs to implead the L.Rs. of the deceased defendant who died on 30.11.2006, as revealed by the copy of the Death Certificate found in the records presented before this Court. 5. As per Order XXII Rule 2 of CPC, which is extracted hereunder: "2. Procedure where one of several plaintiffs or defendants dies and right to sue survives Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to the effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants", it is the duty of the counsel to inform the Court also about the name of the L.Rs. of his deceased client. of his deceased client. There is nothing to show that such a course was adhered to, however the lower Court, on seeing the memo filed by the counsel for the defendant that the defendant died, at once endorsed as though the suit stood abated. Such a course adopted by the lower Court was far from satisfactory and that has to be deprecated in unmistakable terms. Accordingly by virtue of the powers under Article 227 of the Constitution of India, I would like to set aside the order dated 08.12.2006 in O.S.1396 of 1994 passed by the learned Principal District Munsif, Kallakurichi, as though the suit got abated and I mandate that the said suit shall stand restored to the file in its original number. The application which was returned shall be re-presented by the plaintiffs by making necessary further correction, as after the said order passed by the court below, Vasudevan died. The same shall be re-presented within fifteen days from the date of receipt of the original from this Court. The lower Court is bound to allow that application for impleadment and the fact also remains that the deceased Vasudevan is also having L.Rs. and they should also be impleaded as such. Office is directed to return the original immediately. Accordingly, this civil revision petition is allowed. No costs.