IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 OP(C).No. 3260 of 2011(O) ------------------------- OS.705/2010 of PRINCIPAL MUNSIFF COURT,NEYYATTINKARA .................... PETITIONER(S): ------------------------ 1. RANJINI, W/O.SAJIKUMAR ,AGED 28 YEARS, RESHMA BHAVAN, MARUKIL DESOM, PALLICHAL VILLAGE, THIRUVANANTHAPURAM DISTRICT. 2. RAJAN, S/O. DESAN,AGED 55 YEARS, RAJAN NIVAS, MARUKIL DESOM, PALLICHAL VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.J.S.AJITHKUMAR, SRI.S.ASWAKUMAR. RESPONDENT(S): --------------------------- 1. C.L.GEORGE, S/O.JOHN, THANNIVILA PUTHENVEEDU, KULANGRAKONAM, MARUKIL DESOM, PALLICHAL VILLAGE 695 021. 2. LEELA, W/O.MOHANAN, ANEESH BHAVAN, PANTHACHETTIPPARA EDAVAL DESOM, VAZHICHAL VILLAGE, THIRUVANANTHAPURAM DIST 695 022. 3. ANEESH MOHAN, S/O.MOHANAN, AGED 23, PANTHACHETTIPPARA EDVAL DESOM, VAZHICHAL VILLAGE, THIRUVANANTHAPURAM DIST 695 022. 4. NIDHIN, S/O.MOHANAN, AGED 21, PANTHACHETTIPPARA EDVAL DESOM, VAZHICHAL VILLAGE, THIRUVANANTHAPURAM DIST 695 022. 5. ASOKAN, S/O.JOHN, THANNIVILA PUTHENVEEDU, KULANGARAKONAM, PALLICHAL DESOM, PALLICHAL VILLAGE 695 022. 6. ROY, S/O.C.L.GEORGE, ROY VIHAR, KULANGARAKONAM, PALLICHAL DESOM, PALLICHAL VILLAGE ,THIRUVANANTHAPURAM 695 021. 7. SAJI KUMAR, S/O.NARAYANAN NADAR, RESHMA BHAVAN, AYAKODE MELE VEEDU, KULANGARAKONAM, PALLICHAL DESOM, PALLICHAL VILLAGE ,THIRUVANANTHAPURAM 695 021. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.3260/2011 O APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF IA.8366/2010 DT.29.11.2010 OS.705/2010 ON THE FILE OF MUNSIFF'S COURT, NEYYATTINAKARA. EXT.P2 TRUE COPY OF OBJECTION OF PETITIONERS DT.15.12.2010 OS.705/2010 ON THE FILE OF MUNSIFF'S COURT, NEYYATTINAKARA. EXT.P3 TRUE COPY OF IA 678/11 IN OS.705/2010 ON THE FILE OF MUNSIFF'S COURT, NEYYATTINAKARA. EXT.P4 COPY OBJECTION OF PETITIONERS DT.25.2.2011 IN OS. 705/10 ON THE FILE OF MUNSIFF'S COURT, NEYYATTINKARA.. EXT.P5 TRUE COPY OF THE ORDER DT. 2.8.2011 IN IA.8366/10 IN OS.705/10 SERVED TO THE PETITIONERS ON 23.9.2011. RESPONDENTS' EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3260 of 2011 ==================================== Dated this the 13th day of October, 2011 J U D G M E N T Defendants 3 and 4 in O.S. No.705 of 2010 of the court of learned Principal Munsiff, Neyyattinkara are the petitioners before me challenging Ext.P5, order impleading respondents 1 to 4 as additional plaintiffs 2 to 5 in the suit for fixation of boundary and other reliefs. Original plaintiff, mother of respondents 1 to 4 filed the suit against petitioners and respondents 5 to 7 seeking reliefs as aforesaid. She died on 06.08.2010. Respondents 1 to 4 filed I.A. No.8366 of 2010 on 29.11.2010 (i.e., beyond 90 days from the date of death of the original plaintiff) to record the 5th respondent as her legal heir and to implead them as additional plaintiffs 2 to 5 being legal heirs of the original plaintiff. Since that application was filed beyond the prescribed period of 90 days respondents 1 to 4 filed a separate application (Ext.P3) on 01.02.2011 to condone the delay in filing I.A. No.8366 of 2010. In view of that application learned Munsiff allowed I.A. No.8366 of 2010 as per Ext.P5, order which is under challenge. O.P(C) No.3260 of 2011 -: 2 :- 2. Learned counsel contended that on non-impleadment of respondents 1 to 4 within the period of 90 days prescribed for impleadment, there is an automatic abatement of the suit and hence without setting aside the abatement learned Munsiff could not have impleaded respondents 1 to 4 as additional plaintiffs 2 to 5 in the suit. It is also contended that the affidavit in support of I.A. No.8366 of 2010 or Ext.P3, application to condone the delay do not explain the delay in filing I.A. No.8366 of 2010 or contain any request to set aside the abatement. Learned counsel invited my attention to Rule 3(2) of Order XXII of the Code of Civil Procedure (for short, “the Code”) which states that if within the time limited by law no application is made under sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned. 3. I must bear in mind that when the original plaintiff died on 06.08.2010 in whatever capacity it be one of her legal heirs (5th respondent) was in the party array. Hence no question of abatement of suit arises. It is also not disputed that the right of original plaintiff to sue, survived to her legal heirs. 4. Assuming that the suit abated on account of non- impleadment of respondents 1 to 4 as additional plaintiffs within the period of 90 days reckoned from the date of death of the O.P(C) No.3260 of 2011 -: 3 :- original plaintiff (i.e. 06.08.2010) it is not as if the law requires separate applications to set aside the abatement and to condone the delay in filing the application for setting aside amendment. 5. In Kunhikayyumma v. Union of India (AIR 1984 Kerala 184) it is held that the prayer to condone the delay and set aside the abatement should be treated as implicit in the application for impleadment of the legal representatives and that if from the facts and circumstances of a case sufficient cause for the delay in seeking impleadment is made out, the court would be justified in granting relief ignoring the fact that there was no prayer to set aside the abatement. In Ramdas Shivaram Sattur v. Ramesh Chandra Popatlal Shah (2007 )[4] KLT SN 5 – Case No.2 – SC) it is held that the provision regarding abatement is to be construed liberally and that a simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside the abatement. For, when the legal heirs seek their impleadment as such consequent to the death of the original plaintiff it follows that court has to consider the question whether abatement is to be set aside and whether delay in setting aside the abatement is to be O.P(C) No.3260 of 2011 -: 4 :- condoned. Therefore what is required is only availability of sufficient materials before the court to condone the delay and setting aside abatement if any. 6. True that I.A. No.8366 of 2010 (which includes a prayer to record the 5th respondent as one of the legal heirs of the original plaintiff) to implead respondents 1 to 4 as additional plaintiffs 2 to 5 was filed on 29.11.2010 while admittedly the original plaintiff died on 06.08.2010. Indisputably that application was filed beyond the period of 90 days from the date of death of the original plaintiff. It is not disputed that no application to set aside the abatement or condone the delay in filing I.A. No.8366 of 2010 was filed in support of that application. Respondents 1 to 4 filed Ext.P3, application to condone the delay in filing I.A. No.8366 of 2010. In the affidavit in support of Ext.P3, application it is stated in paragraph 4 that after the death of original plaintiff (on 06.08.2010) the first respondent was laid up due to chickenpox and hence the application for impleadment could not be filed on time. I must also bear in mind that delay in making the application for impleadment is only 23 days. 7. It is with the above materials on record that learned Munsiff has allowed I.A. No.8366 of 2010 as per Ext.P5, order. I O.P(C) No.3260 of 2011 -: 5 :- am to understand that it included condonation of delay as also setting aside of the abatement, if any. In that view of the matter argument advanced by learned counsel for petitioners is purely technical. I find no reason to interfere with the impugned order. Original Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv