This Civil Revision Petition is filed under Section 115 of Code of Civil Procedure against the fair and decretal order dated 9.4.1999 in I.A.No.134 of 1998 in O.S.No.674 of 1992 on the file of the II Additional District Munsif Court, Tirunelveli.
C.R.P.(NPD)No.232 of 2006 #1. Mansoor
2. E.M.Lateef
3. Jaffar Ali
4. Sayeed Meeral
5. Minor Uthumal
6. Minor Kamarunnissa ... Petitioners (Minors rep.by her mother and natural guardian Subaitha, the 6th petitioner) Vs.
$1. Bagavathi Ammal
2. Hameed Ali ... Respondents This Civil Revision Petition is filed under Section 115 of Code of Civil Procedure against the fair and decretal order dated 5.8.2005 made in C.M.A.No.10 of 2004 on the file of the II Additional Sub Court, Tirunelveli, confirming the fair and decreetal order made in I.A.No.14 of 2004 in O.S.No.674 of 1992 dated 30.1.2004 on the file of the II Additional District Munsif Court, Tirunelveli.
!For Petitioners ... Mr.R.S.Ramanathan for Mr.S.D.Balaji, ^For Respondents ... Mr.S.S.Sundar :COMMON ORDER C.R.P(PD)No.2890 of 2003 is filed challenging the order dated 9.4.1999 made in I.A.No.134 of 1998 in O.S.No.674 of 1992 on the file of the II Additional District Munsif Court, Tirunelveli.
2. C.R.P.(NPD)No.232 of 2006 is filed by the very same petitioner challenging the order passed in C.M.A.No.10 of 2004 dated 5.8.2005 on the file of the II Additional Sub Court, Tirunelveli, confirming the order dated 30.1.2004 made in I.A.No.14 of 2008 in O.S.No.674 of 1992 on the file of the II Additional District Munsif Court, Tirunelveli.
3. I.A.No.134 of 1998 in O.S.No.674 of 1992 is filed by the petitioners to condone the delay of 1767 days in filing the petition to implead the petitioners 3 to 11 in C.R.P.(PD)No.2890 of 2003 as proposed plaintiffs, since the original plaintiffs 1 and 3 in the suit, who are the respective father of the said proposed plaintiffs, died on 24.11.1995 and 24.2.1993 respectively. The reason stated in the affidavit filed in support of the interlocutory application is that the respective petitioners' father conducted the case and they were not aware of the case details and due to the sudden demise of their respective father, viz., plaintiffs 1 and 3, nobody pursued the case and the details about the case came to the knowledge of the petitioners only recently and thus occurred 1757 days of delay in filing the petition to implead.
4. The said application was rejected by the II Additional District Munsif, Tirunelveli, on 9.4.1999 by stating that the reason given in the affidavit with regard to the lack of knowledge about the suit is unsustainable and without filing petition to set aside the abatement, the petition filed to condone the delay cannot be entertained.
5. The learned counsel for the petitioners submit that the lower Court committed error in numbering the condone delay petition, without filing the application seeking to set aside the abatement and if the condone delay application was returned for the said reason, petitioners could have very well filed the application to set aside the abatement and therefore Court below committed an error in numbering the condone delay petition without the application seeking to set aside the abatement.
6. The learned counsel for the respondents submits that the petitioners have not filed application to set aside the abatement and filed petition only to condone the delay in bringing the legal representatives of the deceased plaintiffs 1 and 3 and therefore the lower Court is right in dismissing the said interlocutory application.
7. I have considered the rival submissions of the learned counsel for the petitioners as well as respondents.
8. It is true that the application to condone the delay must have been filed along with a petition to set aside the abatement of the suit. The Court below ought to have returned the petition seeking condonation of delay since no petition to set aside the abatement was filed. The application for condoning the delay having been numbered erroneously, the Court below alone should be blamed for entertaining the said application, without returning the papers instructing the petitioner to file petition to set aside the abatement.
9. It is well settled in law that the action of the Court shall not prejudice any person.
(a) The Honourable Supreme Court in the case of Sardar Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272, in paragraph 26 held as follows: "26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in the jamabandi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even dehors the cause for the delay in filing the applications keeping in view the serious manner in which it would otherwise jeopardize an effective adjudication on merits, the rights of the other remaining appellants for no fault of theirs. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttled the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court's power or in conformity with the avowed object of the Court to do real, effective and substantial justice. Viewed in the light of the fact that each one of the appellants had an independent and distinct right of his own not interdependent upon one or the other of the appellants, the dismissal of the appeals by the High Court in their entirety does not constitute a sound, reasonable or just and proper exercise of its powers. Even if it has to be viewed that they had a common interest, then the interests of justice would require the remaining other appellants being allowed to pursue the appeals for the benefit of those others, who are not before the Court also and not stultify the proceedings as a whole and non-suit the others as well."
(b) In South Eastern Coalfields Ltd. v. State of M.P., (2003) 8 SCC 648, the Honourable Supreme Court held thus, "28. That no one shall suffer by an act of the court is not a rule confined to an erroneous act of the court; the "act of the court" embraces within its sweep all such acts as to which the court may form an opinion in any legal proceedings that the court would not have so acted had it been correctly apprised of the facts and the law. The factor attracting applicability of restitution is not the act of the court being wrongful or a mistake or error committed by the court; the test is whether on account of an act of the party persuading the court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the court and the act of such party. The quantum of restitution, depending on the facts and circumstances of a given case, may take into consideration not only what the party excluded would have made but also what the party under obligation has or might reasonably have made. There is nothing wrong in the parties demanding being placed in the same position in which they would have been had the court not intervened by its interim order when at the end of the proceedings the court pronounces its judicial verdict which does not match with and countenance its own interim verdict. Whenever called upon to adjudicate, the court would act in conjunction with what is real and substantial justice. The injury, if any, caused by the act of the court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences. ...."
10. In view of the same, C.R.P.(PD)No.2890 of 2003 is allowed and the order passed in I.A.No.134 of 1998 in O.S.No.674 of 1992 dated 9.4.1999 on the file of the II Additional District Munsif, Tirunelveli, is set aside and the matter is remitted back to the II Additional District Munsif Court, Tirunelveli. Petitioners are granted liberty to file application to set aside the abatement within a period of two weeks from the date of receipt of copy of this order. Thereafter the II Additonal District Munsif, Tirunelveli, is directed to consider both the interlocutory applications afresh and pass orders thereon, within a period of four weeks from the date of receipt of copy of this order. Connected miscellaneous petition is closed.
11. Insofar as C.R.P.(NPD)No.232 of 2006 is concerned, the same is filed against the judgment and decree in C.M.A.No.10 of 2004, confirming the fair and decretal order made in I.A.No.14 of 2004 in O.S.No.674 of 1992, seeking to set aside the exparte decree dated 9.1.2004. According to the petitioners, the suit was posted for trial on 9.1.2004. The first plaintiff for bringing the legal heirs on record filed revision petition before this Court and the same was represented before the trial Court. However, the Trial Court called the matter at 7.00 p.m. and dismissed the suit and for seeking restoration I.A.No.14 of 2004 was filed. The said application was dismissed by the trial Court, against which C.M.A.No.10 of 2004 was filed, which was also dismissed.
12. The application seeking condonation of delay in filing the petition to bring the legal heirs on record having been dismissed, C.R.P.(PD)No.2890 of 2003 was filed and the said order is set aside and the matter is remitted to the Trial Court. As such the Civil Suit in O.S.No.674 of 1992 is to be restored to consider the condone delay petition and for filing petition to set aside the abatement. In view of the order passed in C.R.P.(PD)No.2890 of 2003, the dismissal of the suit insofar as the petitioners are concerned, made on 30.1.2004 and the consequential order passed in C.M.A.No.10 of 2004 on 5.8.2005 are liable to be set aside and accordingly C.R.P.(NPD)No.232 of 2006 is allowed. No costs.
Both the revision petitions are allowed with the above direction and observation. No costs. Connected miscellaneous petition is closed.
vr To
1. The II Additional District Munsif, Tirunelveli.
2. The Sub Judge, Tirunelveli.