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2012 DIGILAW 3428 (MAD)

Lilly Santha(died) v. R. Rukku

2012-08-02

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the order dated 15.7.2011 passed by the District Munsif, Katpadi, in I.A.No.908 of 2010 in O.S.No.445 of 2009 and in O.S.No.445 of 2009, respectively, these civil revision petitions are filed. 2. Broadly but briefly, narratively but precisely the germane facts absolutely necessary for the disposal of these revision petitions would run thus: The suit O.S.No.445 of 2009 was filed by the revision petitioners herein along with the deceased Lilly Santha against the original defendant-Ramanujam, seeking the following reliefs: "to pass a decree and judgement a) declaring the absolute title of the plaintiff over the property described in the schedule below. b) granting an order of permanent injunction restraining the defendant and his men from not interfering with the peaceful possession and enjoyment of the plaintiff over the suit property. c) directing the defendants to pay costs of the suit." (extracted as such) (ii) The defendant during his life time filed the written statement. (iii) However, on 16.7.2009, the lower Court recorded concerning the death of the defendant. (iv) Whereupon, the plaintiffs were enjoined to take steps to get impleaded the legal heirs of the defendant. But immediately that was not done so. (v) However, the application I.A.No.908 of 2010 was filed under Section 5 of the Limitation Act to get the delay of 266 days condoned in filing the application I.A.No.910 of 2010 to get set aside the abatement caused and also one other application I.A.No.909 of 2010 for impleading the LRs of the defendant. (vi) The lower Court, after hearing both sides dismissed the said application I.A.No.908 of 2010 filed under Section 5 of the Limitation Act and also the other two applications. (vii) The lower Court, it appears, erroneously numbered all the three applications even before condoning the delay. On dismissal of the application filed under Section 5 of the Limitation Act, the other two applications also consequently were dismissed. Over and above that, the suit, which already got abated, also was dismissed. 3. Being aggrieved by and dissatisfied with the said order passed in the application I.A.No.908 of 2010 filed under Section 5 of the Limitation Act as well as the order of dismissal of the suit, these two revisions have been focussed on various grounds. 4. Even though the plaintiff No.5 died on 12.4.2010, no steps were taken to get impleaded his LRs. 4. Even though the plaintiff No.5 died on 12.4.2010, no steps were taken to get impleaded his LRs. No doubt, there were other plaintiffs and the cause of action survived. However, while filing the civil revision petitions here, with the permission of the Court, the cause titles got amended by adding the LRs of the 5th plaintiff. But one fact is clear and to be pointed out and remembered that normally steps should have been taken to implead the LRs of the 5th plaintiff, adhering to Order 22 of C.P.C. 5. The learned counsel for the revision petitioners would implore and entreat that the delay occasioned not wilfully, but because of some communication gap between the parties concerned and their advocate. 6. The learned counsel for the respondents, the LRs of the deceased sole defendant, would submit that the affidavit is vague as vagueness could be and it is niggard and bereft of details and no head or tail could be made out of it and in such a case, absolutely there is no reason much less valid reason to get the delay condoned. 7. According to the learned counsel for the respondents, the delay was more than 300 days, but wrongly it was stated as though the delay was only 266 days. As such, he would submit that there is nothing wrong in the order passed by the lower Court. 8. The points for consideration are as under: (i) Whether there was only a delay of 266 days in filing the applications to get the abatement set aside and also to get the LRs of the deceased defendant impleaded in the suit or whether there was more delay? (ii) Whether the suit, which was dismissed as abated, has to be restored? (iii) Whether there is any illegality or impropriety in the order passed by the lower Court? 9. All these points are taken together for discussion as they are interwoven and interconnected, entwined and interlinked with one another. 10. At the outset itself I would like to calculate the actual number of days delay. Admittedly, the death of the defendant was recorded by the lower Court on 16.7.2009 and only from that date the plaintiffs could be imputed with the knowledge of the death of the sole defendant. The application to get the delay condoned was filed on 22.10.2010. As such, there was a gap of 462 days delay. Admittedly, the death of the defendant was recorded by the lower Court on 16.7.2009 and only from that date the plaintiffs could be imputed with the knowledge of the death of the sole defendant. The application to get the delay condoned was filed on 22.10.2010. As such, there was a gap of 462 days delay. Out of that, the initial 90 days period for impleading the LRs should be excluded. Over and above that, another 60 days' time for getting the abatement set aside also should be excluded. Accordingly, if viewed, the actual number of days delay would come to 312 days. 11. No doubt, the affidavit was not properly drafted and it is found contained averments as though there was no wilful negligence in causing the delay. The 5th plaintiff, even as on the date of filing the application I.A.No.908 of 2010 under Section 5 of the Limitation Act died and steps also were not taken. Punctilious of Court procedures are not for being flouted or belittled or slighted; however in the meanwhile technicalities are handmaids of justice. As such, the Court always is expected to strike a balance between the two. 12. Here the suit is one for declaration of title and for injunction. So obviously it is a title suit relating to immovable property. In that, the sole defendant died. This aspect alone looms large in the mind of this Court to show indulgence in condoning the delay; as otherwise, if a strict view is taken, expecting the plaintiffs to explain the delay adequately, then the plaintiffs could get only an adverse order. 13. This is a case where the suit was not dismissed for default, but it got abated because of the non-impleadment of the Lrs of the deceased sold defendant. The affidavit accompanying the application filed under Section 5 of the Limitation Act also could have contained some more details as to the time taken for gathering the particulars relating to the names of the LRs of the deceased defendant. 14. From the records available I could not get myself enlightened as to when the details of the LRs of the defendant were furnished to the plaintiffs. The lower Court also could have concentrated on those aspects. 14. From the records available I could not get myself enlightened as to when the details of the LRs of the defendant were furnished to the plaintiffs. The lower Court also could have concentrated on those aspects. As such, I am of the view that an opportunity should have been given to the plaintiffs to proceed with the case by condoning the delay; however, subject to payment of cost. 15. The lower Court also was not justified in numbering the other two applications one for setting aside the abatement and another for getting impleaded the LRs of the deceased, while numbering the application filed under Section 5 of the Limitation Act. Only after passing order in the application filed under Section 5 of the Limitation Act, the question of numbering the other applications would arise, provided the delay was condoned. 16. Be that as it may. Now all the three applications were dismissed by the lower Court. Wherefore, I am of the view that all the three applications should be allowed subject to payment of a total cost of Rs.5000/-(rupees five thousand) in each revision petition, payable by the revision petitions herein to the respondents herein within 15 days from the date of receipt of a copy of this order and accordingly, it is ordered. On such compliance, automatically, the order regarding the dismissal of the suit shall stand set aside and the suit shall stand restored to file. The lower Court shall do well to see that within a period of four months from the date of receipt of a copy of this order, the entire suit is disposed of. The other plaintiffs should take steps to properly implead the LRs of the 5th plaintiff, adhering to Order 22 of C.P.C. 17. The civil revision petitions are disposed of accordingly. However, there is no order as to costs.