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2013 DIGILAW 4244 (MAD)

M. Sumathi v. Radha Ammal (Died) Chandra (Died)

2013-12-19

P.R.SHIVAKUMAR

body2013
JUDGMENT 1. The arguments advanced by Mr. T.P. Kathirravan, learned counsel for the revision petitioner are heard. The copy of the order of the Court below which is challenged in the revision, grounds of revision and the documents produced in the form of typed set of papers are also perused. 2. The petitioner herein was not a party to the suit, which came to be instituted on the file of the Additional District Munsif, Poonamallee as O.S.No.1850 of 1992. The said suit came to be filed by (1) Radha Ammal and (2) Chandra against M.S. Mani and M.S. Arumugam (the respondents 3 and 4 herein) for a bare injunction in respect of the suit property based on the averment that they were the owners and were in possession and enjoyment of the suit property and that the defendants in the suit, namely respondents 3 and 4 herein, were attempting to trespass into the suit property. The suit instituted in 1992 was prolonged for about 18 years and it came to be dismissed for non prosecution on 29.03.2010. 3. From the copy of the amended plaint and the copy of the ex parte judgment and decree passed in the said suit by the learned Additional District Munsif on 29.03.2010, which are found included in the typed set of papers, it appears that Radha Ammal and Chandra died and Kuppa Bai (the second respondent herein) came to be impleaded by an order dated 21.06.2005 made in I.A.No.1705 of 2005. The learned counsel for the revision petitioner is not in a position to state who were all the original plaintiffs and who were all the plaintiffs impleaded subsequent to the filing of the suit. The learned counsel is also not in a position to state whether Durai was a plaintiff in the original plaint or he was impleaded subsequently. The learned counsel for the revision petitioner is not in a position to state who were all the original plaintiffs and who were all the plaintiffs impleaded subsequent to the filing of the suit. The learned counsel is also not in a position to state whether Durai was a plaintiff in the original plaint or he was impleaded subsequently. However from the averments found in the amended plaint, a copy of which has been included in the typed set of papers, this Court is able to find out the fact that the suit was originally filed by Radha Ammal and Chandra against the respondents 3 and 4 herein; that out of two plaintiffs, the first plaintiff Radha Ammal died in 1999 and the second plaintiff Chandra was recognised as the sole legal representative of Radha Ammal; that subsequent thereto Chandra also died whereupon Durai and Kuppa Bai, the respondents 1 and 2 herein, were impleaded as plaintiffs 3 and 4 by virtue of an order dated 21.06.2005 made in I.A.No.1705 of 2005. The respondents 1 and 2, who got themselves impleaded as plaintiffs 3 and 4, after dragging on the case for about five years after their impleadment and after a lapse of nearly 18 years from the date of institution of the suit, did not evince interest in pursuing the case and they left the suit to be dismissed for default. Accordingly, the suit was dismissed for non-prosecution on 29.03.2010. Thereafter none of the above said plaintiffs chose to prefer any application in time for restoration of the suit or within a reasonable time after the time for filing such an application expired along with an application to condone the delay. 4. On the other hand, when the respondents 4 and 5 herein chose to file a suit (O.S.No.250 of 2011 on the file of the Sub Court, Poonamallee) claiming a share in the suit property and seeking a decree for partition, the present revision petitioner has chosen to file an application (unnumbered) on 10.08.2012 under Order IX Rule 9 CPC for the restoration of the suit that had been dismissed for default. The delay in filing the application for restoration of the suit was a little more than 2 years 3 months (833 days). The delay in filing the application for restoration of the suit was a little more than 2 years 3 months (833 days). However, the application under Section 5 of the Limitation Act came to be filed by the revision petitioner stating that there was a delay of 206 days alone in preferring the application for restoration. It is pertinent to note that the application came to be filed not by any one of the plaintiffs in the suit, but by the revision petitioner herein, stating that she wanted to come on record as a proposed plaintiff. Even while filing such application, the revision petitioner chose to furnish a cause title showing two deceased persons, namely Radha Ammal and Chandra, as applicants 1 and 2. She had chosen to array Kuppa Bai as applicant No.3 and herself (revision petitioner) as the applicant No.4, without making Durai, one of the plaintiffs as a party to the application. Though the cause title was given as if the application was filed by Kuppa Bai and Sumathi also, the revision has been filed only by Sumathi, who was not a party to the suit. 5. The revision petitioner Sumathi seems to have filed the application I.A.No.1401 of 2012 in O.S.No.1850 of 1992 on the premise that she had purchased the suit property from the plaintiffs in the suit. According to the revision petitioner, she purchased the property from Radha Ammal, Chandra and Kuppa Bai in the year 2002 itself, to be more precise on 11.02.2002 itself. After the execution of the sale deed, the revision petitioner did not evince any interest to get her name substituted for the plaintiffs or to get impleaded as a plaintiff to pursue the suit. On the other hand, even after two of the alleged executants of the sale deed died, the revision petitioner did not choose to come forward to get herself impleaded on the basis of the alleged derivation of title from the deceased plaintiffs. On the other hand, she was content with her behind the screen direction, making the other legal representatives of the deceased plaintiffs who came on record as plaintiffs 3 and 4 proceed with the case. 6. It is also pertinent to note that the alleged sale deed under which the revision petitioner purchased came to be executed by one Vasanthi as Power Agent of Radha Ammal, Chandra and Kuppa Bai. 6. It is also pertinent to note that the alleged sale deed under which the revision petitioner purchased came to be executed by one Vasanthi as Power Agent of Radha Ammal, Chandra and Kuppa Bai. It is also pertinent to note that Radha Ammal had died in 1999 itself as found from the recitals found in the amended plaint, especially the averments found in paragraph 5(a) of the amended plaint. Hence it is obvious that the sale deed came to be executed by a person claiming to an agent of a deceased person also. Perhaps the same mught be the reason why the revision petitioner did not come forward to get herself impleaded as a plaintiff in the suit and directed the conduct of the suit by others. Even after the dismissal of the suit for non-prosecution, the revision petitioner did not take any steps to get the suit restored. She did not file any petition invoking appropriate provision under Order I Rule 10 CPC to get her impleaded. Nor did she take any efforts to get her impleaded on the death of some of her vendors. She happened to be a passive on-looker watching the progress of the proceedings and did nothing for more than two years even after the disposal of the suit. Only when the respondents 3 and 4 herein chose to file a suit in O.S.No.250 of 2011 for partition, the revision petitioner chose to file an application to restore the suit O.S.No.1850 of 1992 that had been dismissed for default and also an application to condone the delay in filing such application. 7. While computing the period of delay, as indicated above, the revision petitioner has suppressed the fact that there had been an inordinate delay of 833 days and made an attempt to project that the delay was only 260 days. The reasons assigned by the revision petitioner for the delay caused in filing the application also did not provide a basis for an inference that she was prevented by a reasonable cause from approaching the Court in time to get the suit restored. Moreover, the revision petitioner, who claims to have purchased the property in 2002, is expected to state the reasons for not coming to the Court immediately after such purchase to get her name substituted for her vendors and pursue the suit filed by her vendors. Moreover, the revision petitioner, who claims to have purchased the property in 2002, is expected to state the reasons for not coming to the Court immediately after such purchase to get her name substituted for her vendors and pursue the suit filed by her vendors. The learned Additional District Munsif, Poonamallee, on proper appreciation of facts, came to a correct conclusion that the application filed under Section 5 of the Limitation Act could not be allowed as the reasons assigned by the revision petitioner were not sufficient, besides those reasons being not believable. This Court would add that the conduct of the petitioner would show even an attempted abuse of process of Court. 8. For all the reasons stated above, this Court comes to the conclusion that there is no merit in the revision and the revision does not even merit admission and that the same deserves to be dismissed at the threshold. Accordingly, the revision petition is dismissed. There shall be no order as to costs.