V.Shanmugam vs S.Thangaraj (Died)
2021 Latest Caselaw 16145 Mad

                            BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED :09.08.2021

                                                  CORAM:

                          THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
                                   C.M.P(MD)Nos.6758,6759 and 6760 of 2021
                                                     in
                                         S.A(MD)SR.No.48423 of 2017

                V.Shanmugam                                       ... Petitioner/Appellant in all
                                                                                       petitions
                                                     -vs-

                S.Thangaraj (Died)                           ... Respondent/Sole respondent

1. Selvaraj

2.Mahalingam

3.Murugan

4.Jayanthi 5 Venkatesan ..Respondents/legal heirs of the deceased Thangaraj in all petitions

Prayer in CMP(MD) No.6758 of 2020 : Petition filed under Section 5 of the Limitation Act to condone the delay of 1294 days in filing the above application to set aside the abatement caused due to the death of the deceased sole respondent viz.,Thangaraj in the above second appeal

Prayer in CMP(MD) No.6759 of 2020 : Petition filed under Order 22 Rule 9 of the Civil Procedure Code to set aside the abatement caused due to the death of the deceased sole respondent viz, Thangaraj in the above second appeal

https://www.mhc.tn.gov.in/judis/

Prayer in CMP(MD) No.6760 of 2020 : Petition filed under Order 22 Rule 4 of the Civil Procedure Code to to bring on record the proposed petitioners herein as legal representatives of the deceased sole respondent viz., Thangaraj and rank them as respondents 2 to 6 in the above CMP(MD) No. 6314 of 2019 in SA(MD) Sr.No.48423 of 2014

( In all petitions) For Petitioner : Mr.T.Lenin Kumar For Respondent : Mr. P.Kanagaraja

COMMON ORDER

These petitions have been filed to condone the delay of 1294 days in

filing the above application to set aside the abatement caused due to the

death of the deceased sole respondent viz., Thangaraj ; to set aside the

abatement caused due to the death of the deceased sole respondent viz.,

Thangaraj in the above second appeal; to bring on record the proposed

petitioners herein as legal representatives of the deceased sole respondent

viz., Thangaraj and rank them as respondents 2 to 6 in this appeal.

2. The brief facts of the case is as follows :

The petitioner is the defendant in O.S.No.2264 of 1994, on the file of

the Principal District Court at Trichy. The respondent/plaintiff has filed a suit

seeking permanent injunction against the petitioner and his men from any

way interfering in the peaceful possession and enjoyment of the suit

https://www.mhc.tn.gov.in/judis/

property. The suit was decreed on 15.04.2005, against which, the petitioner

has filed first appeal in A.S.No. 37 of 2006, on the file of the Sub-Court,

Trichy and the appeal was dismissed by judgment and decree, dated

18.03.2008. Against the same, the petitioner had filed the second appeal with

a delay of 3148 days and the same was returned for rectifying certain defects.

The petitioner had represented the appeal after compliance and there had

been a delay of 494 days in representation and he had filed CMP(MD) No.

6314 of 2019 to condone the delay in representing the appeal and it was

allowed without notice to the respondent. Meanwhile the respondent/plaintiff

Thangaraj died and the present petition has been filed with the above prayer.

3. The learned counsel for the petitioner would submit that the

petitioner is a defendant in O.S.No.2264 of 1991 on the file of the Principal

District Court at Trichy. The petitioner was contesting the case. While so he

met with an accident in the year 2006 and he sustained injuries on his head

and spine, due to which he was unable to move anywhere. Meanwhile suit

was decreed on 15.04.2005. Against the judgment and decree in O.S.No.

2264 of 1994 , the petitioner filed an appeal in A.S.No.37 of 2006 on the file

of the Sub Court, Trichy . The appeal was dismissed by judgment on

18.03.2008. Due to the accident the petitioner was unable to move around

and he was not able to contact his counsel. Only during the first week of https://www.mhc.tn.gov.in/judis/

September 2017 he had contacted the counsel and thereby there had been

delay in filing the second appeal before this Court. Subsequently because of

the health issues the petitioner was unable to move and the petitioner is

unable to follow up the case properly. In the meanwhile the appeal filed by

the petitioner had been returned for certain compliances and there was a

delay of 494 days in representation and this Court had condone the delay of

494 days. Meanwhile before the appeal could be numbered the first

respondent/plaintiff had passed away on 10.12.2013. The petitioner was not

aware of the same and since the petitioner did not take steps the appeal got

abated on account of the death of the deceased/sole respondent. Since the

petitioner was living in different area in the village he was not aware of the

death of the respondent and thereby the present petition has been filed with

the delay.

4. The learned counsel would further submit that the delay of 1294 days

to set aside abatement is neither wilful nor wanton and it is only on account

of the petitioner being not aware of the death of the respondent. He would

further submit that the petitioner was admitted in the hospital on 27.05.2013

and discharged on 28.06.2013 and he would pray that the delay may be

condoned.

https://www.mhc.tn.gov.in/judis/

5. The learned counsel for the respondent would submit that the suit

was decreed on 15.04.2005. Thereafter appeal was filed by the petitioner and

was dismissed on 18.03.2008. The claim of the petitioner is that he met with

the road accident during the year 2006 was prior to the dismissal of the first

appeal and that cannot be taken as a ground for condoning the present delay.

Thereafter the petitioner had filed the second appeal with a huge delay of

3148 days. Registry has returned the appeal for certain compliances and the

petitioner had not represented the bundle within the specified time and once

again there had been a delay of 494 days and the petitioner filed a petition to

condone delay of 494 days had been allowed without notice to the

respondents. The petitioner and respondents are living in the same area of

Ettarai Post, Srirangam Taluk which is very close by and the petitioner is well

aware of the death of the father of the proposed respondents on 10.12.2016,

whereas the present petition has been filed after delay of 4 1/2 years and the

petitioner has been lethargic at every stage of the proceedings. The

petitioner is wantonly delaying the proceedings and at every stage there had

been delay. Further in the affidavit filed in support of the petition nothing has

been stated about the health issues and he has also suppressed the fact that

both are living in the same street in the village, where as the petitioner had

averred that he is residing away from the village and thereby he is not aware

of the death of the sole respondent. No sufficient cause has been shown by https://www.mhc.tn.gov.in/judis/

the petitioner to condone the huge delay of 1294 days.

6. Heard both sides and perused the materials on record.

7. The petitioner is a defendant in O.S.No.2264 of 1991 on the file of

the Principal District Court at Trichy . The suit was decreed on 15.04.2005

against which the petitioner has filed A.S.No.37 of 2006 and the appeal was

dismissed by judgment and decree dated 18.03.2008. Thereafter the

petitioner had filed second appeal with a huge delay of 3148 days and even

thereafter at every stage the petitioner had been lethargic and due to his

lethargic attitude the appeal has not been numbered. Though the petitioner

and the deceased/respondent are living in the same street a false affidavit

has been filed before this Court stating that the petitioner is residing away

from the respondent village. No proof has been filed to substantiate the claim

that the petitioner is living away from the village of the deceased/respondent,

thereby to prove that he is not aware of the death of the respondent.

8.This Court is not satisfied with the reasons given by the petitioner

and there is no sufficient cause shown by the petition to condone the delay

of 1294 days in filing the above application to set aside the abatement caused

due to the death of the deceased sole respondent viz., Thangaraj ; to set https://www.mhc.tn.gov.in/judis/

aside the abatement caused due to the death of the deceased sole

respondent viz., Thangaraj in the above second appeal; to bring on record the

proposed petitioners herein as legal representatives of the deceased sole

respondent viz., Thangaraj and rank them as respondents 2 to 6 the appeal.

9. In the result, these petitions stand dismissed.

09.08.2021

aav

Note :

In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.

https://www.mhc.tn.gov.in/judis/

A.D.JAGADISH CHANDIRA.J

aav

C.M.P(MD)Nos.6758,6759 and 6760 of 2021 in S.A(MD)SR.No.48423 of 2017

09.08.2021

https://www.mhc.tn.gov.in/judis/