Shanmugam vs Muthammal and Others

M. Duraiswamy, J.—Heard both sides. The Plaintiff in the Suit has filed the above Civil Revision Petition challenging the fair and final order

passed in I.A. No. 1092 of 1992 in O.S. No. 737 of 2004 on the file of Principal District Munsif Court, Tiruchengode.

The Petitioner/Plaintiff filed an application in I.A. No. 1092 in O.S. No. 737 to condone the delay of 145 days in filing the Application to bring

on record the legal heir of the deceased/First Defendant. According to the Plaintiff, the First Defendant died intestate on 3.12.2008. The

deceased-First Defendant is survived by Defendants 2 to 4 and one Annakodi.

Since the legal heirs of the deceased-First Respondent are already on record, the Suit has not abated. Only if the Suit is abated, the question of

delay would come under Articles 120 & 121 of Limitation Act.

In the case on hand, since the other Legal Representatives are already on record, the Suit has not abated. Therefore, the Plaintiff should not

have filed the present Application to condone the delay of 145 days in filing the Legal Representative Application. The delay would occur only in

the case of abatement and not in the case of filing the Petition to bring on record. The Trial Court erroneously dismissed the said Application giving

different reasons. Though in the strict sense, condone the delay in filing the Legal Representative Application is not required, the Trial Court,

without going into that aspect, dismissed that Application stating that the Plaintiff had not given acceptable reason for the condonation of delay. The

Plaintiff could have filed an Application to bring on record the Legal Representatives of the deceased/First Respondent without filing a Petition to

condone the delay in setting aside the abatement. The reasoning given by the Trial Court for dismissing the Application in I.A. No. 1092 of 1992 in

O.S. No. 737 of 2004 are not legally sustainable. Since the Application itself is not required to be filed, the said Application should have been

dismissed for the reasons stated above.

In these circumstances, the Application in I.A. No. 1092 of 1992 in O.S. No. 737 of 2004 stands dismissed. The Petitioner is given liberty to

file an Application under Order 22, Rule 4 of CPC to bring on record the Legal Representatives of the deceased-First Respondent within a period

of two weeks from the date of receipt of a copy of this order. Since the Suit is of the year 2004, I direct the Principal District Munsif Court,

Tiruchengode to dispose of the Suit in O.S. No. 737 of 2994 on merits and in accordance with law within a period of four months from the date of

receipt of a copy of this order.