Madras High Court
Mrs.Elizebath Dhanalakshmi vs Mrs.Narayaniyammal(Died) on 26 September, 2024
Author: Battu Devanand
Bench: Battu Devanand
CRP. No.1171 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 29.07.2024
PRONOUNCED ON : 26.09.2024
CORAM
THE HONOURABLE MR.JUSTICE BATTU DEVANAND
C.R.P. (PD) No.1171 of 2019
& CMP No.7505 of 2019
Mrs.Elizebath Dhanalakshmi ... Petitioner/plaintiff
Vs.
Mrs.Narayaniyammal(died)
1.Sanjeevikumar
P.S.Gangathara Mudaliar(died)
2.Mrs.Meera
3.Mrs.Vasantha
4.Mrs.Usha
5.Mrs.Vittabai
6.Mohanraj
7.Mr.Vijayakumar
8.Mr.Anbu
9.Mr.Sasikumar ..... respondents
Prayer : Civil Revision Petition filed under Article 227 of the Constitution
of India, praying to set aside the fair and decretal order dated 23.12.2016
passed in I.A.No.1622 of 2014 in O.S.No.578 of 2004 on the file of the
learned District Munsif, Thiruvallur.
1/10
https://www.mhc.tn.gov.in/judis
CRP. No.1171 of 2019
For Petitioner : Mr.R.Karunagaran
For Respondents
For R3 : Mr.K.A.Mariappan,
For R1, R2 & R4 : No Appearance
For RR5 to 9 : Dismissed
ORDER
This Civil Revision Petition has been filed against the order dated
23.12.2016 made in I.A.No.1622 of 2014 in O.S.No.578 of 2004 on the file
of the learned District Munsif, Thiruvallur.
2.The petitioner herein is the plaintiff in the suit. He filed a suit in
O.S.No.578 of 2004 before the trial Court for declaration, to declare that the
plaintiff is the rightful owner of the suit property and also for permanent
injunction restraining the defendants 1 & 2 and their men from interfering
with the plaintiff's peaceful possession and enjoyment of the suit property.
The said suit was contested by the defendants by filing a written statement.
While so, during the pendency of the suit, the third defendant died leaving
behind his legal heirs/proposed parties viz., the respondents 5 to 9. Hence,
the petitioner herein has moved a Interlocutory Application in I.A.No.1622
of 2014 under Section 5 of the Limitation Act, seeking to condone the delay
of 707 days in filing the LR application, to bring the legal heirs of the
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deceased third defendant on record.
3. According to the petitioner, the third defendant died and a memo
was filed on 12.11.2011. However, on 20.03.2012, the trial Court dismissed
the suit against the third defendant for not taking steps. The legal heirs of
the third defendant, who was the vendor of the suit properties, are just and
necessary parties and sought their impleadment. However, there was a delay
of 707 days in bringing the LR application. The reason assigned by the
petitioner for delay are that he was aged about 75 years and was undergoing
Siddha Medical treatment for Jaundice and for knee pain and hence he was
unable to meet the counsel to take steps to bring the legal heirs of the third
defendant on record. Hence, the petitioner sought for condonation of delay
of 707 days in filing the LR application. The said IA was resisted by the
respondents by filing counter affidavits, denying the averments contained in
IA stating that the petitioner has not evinced any interest to expedite the suit
proceedings from 2004 to till date. The intention of the petitioner is only to
drag on the proceedings. Hence, the respondents sought for dismissal of IA.
4. On consideration of the averments made by the learned counsel on
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either side, the trial Court vide order dated 23.12.2016 dismissed the IA.
Questioning the same, the present revision petition has been filed.
5. The learned counsel for the petitioner would submit that the trial
Court has not appreciated the fact that the petitioner is aged about 75 years
and was undergoing Siddha Medical treatment for Jaundice and knee pain,
therefore she could not meet her counsel to take steps on the demise of the
third defendant to bring LRs on record. However, the trial Court has
erroneously dismissed the suit as against the third defendant as abated on the
ground that no steps were taken to bring the LRs of the third defendant on
record, which cannot be sustained. The learned counsel would also submit
that the trial Court ought not to have dismissed the IA when the petitioner
has assigned convincing reasons and it is settled law that Courts should
adopt liberal approach in condoning the delay in the matters, where the
rights of the parties are involved. In support of his contention, he relied
upon the decision of the Hon'ble Supreme Court in Banwarilal Vs. Balbir
Singh reported in 2015 (9) Scale 344.
6. The learned counsel would also submit that the trial Court has
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erroneously dismissed the application on the ground that the petitioner
herself filed a memo on 16.03.2009, wherein, it is stated that the death of the
third defendant was known to the petitioner as early as on 09.03.2009.
However, suppressing the same, the petitioner calculated the delay only 707
days instead of 1687 days.
7. The learned counsel pointed out that the trial Court has ignored the
fact that subsequently the suit came to be dismissed as against the third
defendant as abated on 12.11.2011 for not bringing the legal heirs on record
and therefore, the actual delay has to be calculated from the date of the
dismissal of the suit against the third defendant and thereby the delay of 707
days was correctly calculated and hence the order passed by the trial Court is
liable to be set aside. He would urge this Court to entertain this Revision
Petition and to set aside the order of the trial Court in order to give an
opportunity to the petitioner /plaintiff to prove his case.
8. The learned counsel for the respondents would submit that the
petitioner is making every attempt to prolong the case without giving any
final result from 2004 and filing of I.A.No.1622 of 2014 is an one such
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attempt to drag on the proceedings. He further contends that the order passed
by the Trial Court in dismissing I.A.No.1622 of 2014 is legally sustainable
and as such the interference of this Court is not necessary. Basing on the
facts and circumstances of the case, he sought to dismiss the Civil Revision
Petition.
9. The petitioner/plaintiff has filed the suit for permanent injunction
simpliciter restraining the defendants 1 and 2 not to disturb the plaintiff's
peaceful possession and enjoyment of the suit property in any manner
whatsoever and for costs. During the pendency of the suit, the petitioner has
filed a memo dated 16.03.2009 stating that the third defendant viz.,
P.S.Gangathara Mudliar died on 17.01.2009. Subsequently, the suit was
dismissed as against the third defendant as abated on 12.11.2011.
10. The learned counsel for the defendants also filed a memo stating
that the third defendant died and the same was recorded by the Court.
Subsequently, on 04.07.2012, the counsel for the defendant filed a memo
stating that the first defendant died on 24.05.2012 and the same was
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recorded by the Trial Court. It appears that on the same date, I.A.No.1013 of
2012 was filed to implead the LR's of the deceased first defendant and the
same was allowed on 01.04.2013.
11. The petitioner has filed the petition under Section 5 of the
Limitation Act to condone the delay in filing LR application for the
deceased third defendant along with the petition to set aside the order of
abatement and to implead LRs of third defendant under Order 22 Rule 9 and
4 of CPC. The Trial Court came to the opinion that the petitioner has
belatedly come out with the condone delay petition and accordingly
dismissed the same holding that convincing reasons are not stated by the
petitioner to condone the delay.
12. Having considered the rival contentions on either side, it appears
that the third defendant is the vendor of the suit properties and after his
death, his legal heirs are proposed to be impleaded in the suit. It is also an
admitted fact that the petitioner is aged about 75 years and facing several
health problems and this fact is not disputed by the respondents. Besides this
by impleading legal heirs of the third defendant in the suit proceedings
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would not cause any prejudice to anybody and it will be useful for proper
adjudication of the case.
13. At this juncture, it is very apt to refer the judgment of the Hon'ble
Apex Court in Banwarilal Vs. Balbir Singh reported in 2015 (9) Scale 344,
wherein it is held that while deciding the matter when the parties to the suit
died, the delay in bringing the LRs on record is not supposed to be too
technical and the same has to be set aside on merits sympathetically. As seen
from the reasons stated in the affidavit filed along with the condone delay
petition, this Court is of the opinion that the petitioner has shown sufficient
cause to condone the delay.
14. For the aforesaid reasons, this Court is of the considered opinion
that the petitioner has shown sufficient cause to condone the delay and
as such, the order of the Trial Court dated 23.12.2016 in I.A.No.1622 of
2014 in dismissing the petition filed by the petitioner to condone the delay in
filing the application to bring the LRs on record is liable to be set aside.
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15. Accordingly, the Civil Revision Petition is allowed. The order
dated 23.12.2016 in I.A.No.1622 of 2014 in O.S.No.578 of 2004 on the file
of the learned District Munsif, Thiruvallur is hereby set aside.
No costs.
Consequently, connected miscellaneous petition is closed.
26.09.2024
dn/pvs
Index : Yes / No
Internet : Yes / No
To
The learned District Munsif, Thiruvallur
https://www.mhc.tn.gov.in/judis
BATTU DEVANAND.J.,
pvs
26.09.2024
https://www.mhc.tn.gov.in/judis
