The civil revision petitions are directed against the fair and decreetal orders, dated 27.07.2009, passed in I.A.Nos.232, 234, 235 and 233 of 2008 respectively in A.S.No.58 of 2002, on the file of the Principal Subordinate Court, Tirunelveli,.
2. The revision petitioners are the defendants in O.S.No.610 of 1998, on the file of the I Additional District Munsif Court, Tirunelveli. It is seen that the deceased M.Mariappan had levied the abovesaid suit against the revision petitioners claiming the reliefs of declaration and permanent injunction in respect of the suit property. After contest, the abovesaid suit ended in favour of the deceased M.Mariappan. Aggrieved over the Judgment and Decree passed by the Trial Court, it is found that the revision petitioners had preferred the first appeal in A.S.No.58 of 2002 against the deceased M.Mariappan. According to the revision petitioners, pending the abovesaid first appeal, the deceased Mariappan had died, leaving behind his wife and daughter as his legal heirs and further, according to the revision petitioners, they came to know about the death of the deceased Mariappan only now and accordingly, made strenuous efforts to trace out the date of death of the deceased Mariappan and the particulars of his legal representatives and only on the revision petitioners obtaining those particulars now, came to know that http://www.judis.nic.in 4 the deceased Mariappan had died even as early as on 09.06.2007, leaving behind his legal representatives as abovestated and accordingly, the delay had occurred in preferring the application to bring his legal representatives on record in the first appeal and consequently, the first appeal having been abated, accordingly, it is stated that the revision petitioners had been necessitated to lay the necessary applications to condone the delay of 325 days in filing the application to implead the legal representatives of the deceased Mariappan and also the application to set aside the abatement of the appeal and the application to bring the legal representatives of the deceased Mariappan on record. Furthermore, according to the revision petitioners, inasmuch as the daughter of the deceased Mariappan, by name, Durga is a minor to be represented by her mother / wife of the deceased Mariappan or the guardian appointed by the Court, accordingly, also preferred another application seeking for the appointment of the guardian for the minor Durga.
3. As regards the abovesaid applications, particularly, the application to condone the delay in preferring the legal representatives of the deceased Mariappan on record, the respondents resisted the same disputing the claim of the revision petitioners that they had come to know about the death of the deceased Mariappan only now and that on making strenuous efforts, they had come to know about the date of death of the deceased Mariappan and the http://www.judis.nic.in 5 particulars of his legal representatives and according to the respondents, the abovesaid cause projected by the revision petitioners are false and further stated that the revision petitioners knew very well about the death of the deceased Mariappan on the date of death itself as they are also residing in the same Village, where the deceased respondent was residing and despite the abovesaid position, the cause projected by the revision petitioners that they are aware of the death of the deceased Mariappan only recently and therefore, the delay had occurred, as such, should not be accepted and the appeal having been abated on account of the failure on the part of the revision petitioners to implead the legal representatives of the deceased Mariappan on record in time and furthermore, there occurred the delay of 410 days to implead the legal representatives of the deceased Mariappan and with reference to the same, inasmuch as the revision petitioners have not come forward with acceptable cause and reason, the delay application as well as the other applications preferred by the revision petitioners are liable to be dismissed.
4. The abovesaid delay application and the other applications laid by the revision petitioners as abovestated were taken up for enquiry by the Court below and as on either side, no oral and documentary evidence has been adduced, on the basis of the submissions made by the respective parties, http://www.judis.nic.in 6 proceeded to dismiss the abovesaid applications preferred by the revision petitioners. Impugning the same, the present civil revision petitions have been preferred.
5. The revision petitioners, who are the defendants in the Trial Court and having suffered the decree in the suit laid by the deceased respondent, preferred the first appeal against the Judgment and Decree of the Trial Court. It is seen that pending the first appeal, the deceased Mariappan had died and admittedly, it is found that the revision petitioners had not impleaded the legal representatives of the deceased respondent within the time allowed by law. Though according to the revision petitioners, there occurred a delay of 325 days in filing the application to implead the legal representatives of the deceased respondent, according to the respondents, the delay is 410 days. Be that as it may, the revision petitioners had failed to take steps to bring the legal representatives of the deceased respondent on record in time, resultantly, as putforth by the respondents, the first appeal preferred by the revision petitioners had become abated. Seeking to condone the delay in bringing the legal representatives of the deceased respondent, set aside the abatement, implead the legal representatives of the deceased respondent on record and appoint guardian for the minor legal heir of the deceased respondent, the applications had been preferred by the revision petitioners. http://www.judis.nic.in 7 With reference to the same, the only reason putforth by the revision petitioners is that they had come to know about the death of the deceased respondent only recently and thereafter, after making strenuous efforts, they had come to know that the deceased respondent had died even as early as on 09.06.2007 and also came to know about the particulars of his legal representatives only now and accordingly, the delay had occurred in bringing the legal representatives of the deceased respondent on record. The abovesaid cause projected by the revision petitioners has been stoutly resisted by the respondents putting forth that the reasons putforth by the revision petitioners for the delay are unsustainable and false and according to the respondents, the revision petitioners are well aware of the death of the deceased respondent on the date of death itself as they are also residing in the same Village, where the deceased respondent was residing and therefore, they cannot feign ignorance and despite the above position, they had wantonly failed to bring the legal representatives of the deceased respondent on record in time and consequently, the appeal having been abated and as no proper reason had been adduced by the revision petitioners and even the period of delay in bringing the legal representatives of the deceased respondent on record having not been correctly furnished by the revision petitioners, according to the respondents, the applications preferred by the revision petitioners are liable to be dismissed.
http://www.judis.nic.in 8
6. It is seen that there is an inordinate and huge delay in bringing the legal representatives of the deceased respondent on record. When with reference to the same, the reasons projected by the revision petitioners are found to be stoutly opposed by the respondents, the revision petitioners should have endeavoured to place acceptable and reliable materials with reference to their cause as to why they had been unable to bring the legal representatives of the deceased on record in time. Other than vaguely stating that they had come to know about the death of the deceased respondent only now and thereafter, on making strenuous efforts, they had come to know about the death of the deceased respondent as 09.06.2007 and also obtaining the particulars of his legal representatives, they had preferred the application and hence, the delay had occurred, in my considered opinion, as also rightly determined by the Trial Court, are found to be unacceptable and the abovesaid cause has been made only to give some reason or the other for the delay that had occurred in filing the applications in time.
7. The defence projected by the respondent that the revision petitioners are well aware of the death of the deceased respondent on the date of death itself as the revision petitioners are also residing in the same Village has not been controverted by the revision petitioners in any manner as per law. http://www.judis.nic.in 9 Furthermore, the revision petitioners have also not come out with correct facts as to on what date in specific they had come to know about the death of the deceased respondent and thereafter, what are all the efforts made by them to know about the date of his death and the particulars of the legal representatives and through whom, they had come to know about the same, with reference to all the abovesaid facts, absolutely, there is no material forthcoming on the part of the revision petitioners, particularly, when the abovesaid facts are being repudiated by the respondents, as rightly pointed out by the Court below, the revision petitioners should have placed reliable and convincing materials to sustain their case with reference to the delay projected by them. As rightly pointed out by the Court below as well as pointed out by the respondents in the counter, even the correct period of delay has not not been furnished by the revision petitioners in preferring the applications and this itself would go to expose as to the attitude of the revision petitioners in conducting their first appeal and therefore, it is found that they are not serious in conducting the first appeal preferred by them and accordingly, left the matter to go abated in not bringing the legal representatives of the deceased respondent on record in time.
8. The counsel for the revision petitioners contended that considering the position of law as outlined under Order XXII Rule 10-A of the Code of Civil http://www.judis.nic.in 10 Procedure and accordingly, contending that inasmuch as the counsel appearing for the deceased respondent had failed to furnish the factum of the death of the deceased respondent and also his date of death and the particulars of his legal representatives, the revision petitioners are entitled to invoke the provisions of the abovesaid law for sustaining their case.
9. Order XXII Rule 10-A C.P.C. reads as follows:
“10-A. Duty of pleader to communicate to Court death of a party. - Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.”
10. As abovenoted, according to the revision petitioners, they had come to know about the death of the deceased respondent only now. It is not the case of the revision petitioners that the counsel, who is supposed to have entered appearance on behalf of the deceased respondent, had been aware of the demise of the deceased respondent and he had failed to furnish the abovesaid facts to them or to the Court, as stipulated under Order XXII Rule 10-A C.P.C. Even in the affidavits appended to the applications, the revision petitioners have not stated that the counsel appearing for the deceased http://www.judis.nic.in 11 respondent, despite having knowledge about the death of the deceased respondent, having failed to furnish the date of his death and his legal representatives and thereby, they had been unable to bring the legal representatives of the deceased on record in time. Though the duty had been cast upon the counsel for either parties to inform the Court about the death of the deceased litigant, however, when the abovesaid reason has not been stated by the revision petitioners, as having occasioned the delay on their part in bringing the legal representatives of the deceased respondent and when they have not averred anything about the same in the affidavits appended to the applications and furthermore, when the revision petitioners having not come forward with a clear case as to through what source they had come to know about the death of the deceased respondent and what are the further efforts taken by them to ascertain his death and his legal representatives and when with reference to the same, there is no material forthcoming whatsoever and without pleading that only on the failure of the deceased respondent's counsel, they had been unable to bring the legal representatives of the deceased respondent on record in time, in such view of the matter, in my considered opinion, the invocation of Order XXII Rule 10-A C.P.C., cannot be projected on the part of the revision petitioners for the condonation of the delay. When there is no material placed on the part of the revision petitioners that the counsel had entered appearance on behalf of the deceased respondent and http://www.judis.nic.in 12 that the said counsel is also aware of the death of the deceased respondent and he had deliberately failed to furnish the particulars of his death and the particulars of his legal representatives, the revision petitioners cannot take umbrage under the abovesaid provision of law, for seeking the condonation of the inordinate and huge delay in bringing the legal representatives of the deceased respondent on record.
11. In the light of the abovesaid factors, when no sufficient cause and reason had been assigned by the revision petitioners, for bringing the legal representatives of the deceased respondent on record and particularly, when they have not endeavoured to sustain their alleged cause by placing acceptable and reliable materials to prove the same, despite the resistance putforth by the respondents as against the same and when the particulars for the delay given by the revision petitioners are found to be vague and unsustainable and even the period of delay having not been properly computed by the revision petitioners, all would go to show that the revision petitioners are not serious in contesting the first appeal preferred by them and thereby, left the matter to go for dismissal as abated and they having failed to adduce proper and convincing reasons to condone the huge and inordinate delay in bringing the legal representatives of the deceased respondent on record and the case of the respective parties having been assessed by the http://www.judis.nic.in 13 Court below in the right perspective by giving proper reasons and thereby dismissed the applications preferred by the revision petitioners, the same not warranting any interference as above discussed, all the civil revision petitions are found to be devoid of merits and, they are, accordingly, dismissed. No costs.
12.12.2018 Internet : Yes / No Index : Yes / No krk To: The Principal Subordinate Judge, Tirunelveli. http://www.judis.nic.in 14 T.RAVINDRAN, J. krk COMMON ORDER IN C.R.P.(NPD) (MD) Nos.1471, 1472, 1473 & 1474 of 2009 12.12.2018 http://www.judis.nic.in