IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:22-09-2010 CORAM THE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAH CRP.PD.Nos.1323 and 1324 of 2004 & C.M.P.No.12589 of 2004 Ranjini .. Petitioner in both the revisions (6th Petitioner) Vs. 1.Kanthamani 2.Vijayaraghavan 3.Sethu 4.Sathyanarayana 5.Ramana 6.Narayaniammal .. Respondents in both the revisions (Petitioner and Respondents 2 to 5 and 7) Prayer:- These Revisions have been filed under Section 115 of C.P.C to set aside the order dated 28.01.2003 passed in I.A.Nos.191 and 9344 of 2002 in O.S.No.3363 of 1996 pending on the file of XIV Assistant Judge, (i/c) of the III Assistant City Civil Judge, Chennai. For Petitioner : Mr.A.R.Gokulnath For Respondents : Ms.Vasutha Thiyagarajan for R1 Mr.S.Devanathan for R2 to R5 Mr.Guru Ramachandran for R6 ORDER C.R.P.PD.No.1323 of 2004: This revision has been filed against the order passed by the lower court in allowing the application in I.A.No.191 of 2002 in O.S.No.3363 of 1996 in condoning the delay of 1528 days in seeking to set aside the abatement caused by the death of the 1st defendant. C.R.P.PD.No.1324 of 2004: This revision has been filed against the order passed by the lower court in allowing the application in I.A.No.9344 of 2002 in O.S.No.3363 of 1996 to set aside the abatement caused by the death of the 1st defendant. 2. Heard Mr.A.R.Gokulnath, learned counsel for the petitioner. Ms.Vasutha Thiyagarajan, learned counsel for the 1st respondent and https://hcservices.ecourts.gov.in/hcservices/ Mr.S.Devanathan, learned counsel for the respondents 2 to 5 and Mr.Guru Ramachandran for the 6th respondent. 3. Learned counsel for the petitioner in both the revisions would submit in his argument that the lower court was not correct in condoning the delay of 1528 days, since the petitioner has not produced any proof regarding date of knowledge by adducing evidence and the actual days of delay caused there in has not been furnished as required under Order 22 Rule 5 (b) CPC. He would further submit in his argument that the actual delay caused to set aside the abatement was 1328 days, since the suit was abated on 02.05.1996 on the death of 1st defendant on 02.02.1996 and thereafter, the petition was filed only on 09.10.2001. and therefore, the lower court did not apply its mind to condone the delay in filing the application to set aside the abatement and also to pass an order to set aside the abatement caused due to the death of 1st defendant. He would also draw the attention of the court that the lower court did not apply its mind to the said provisions of Order 21 Rule 9 and therefore, this court may interfere with the orders passed by lower court and the same may be set aside. 4. Learned counsel for the 1st respondent would submit in her argument that the petitioner was having the knowledge of the death of the 1st defendant only after an endorsement was made in the court on 08.08.2000 and the plaintiff was not aware of the said fact prior to the said occasion and when it was recorded by the court it is not necessary for letting any other evidence for the knowledge of the 1st respondent/plaintiff that the plaintiff was aware of the death of the 1st defendant. She would further submit in her argument that the application for impleadment of legal representatives was filed on 24.09.2000 and after filing the counter only, it has been understood that the plaintiff has to file two other applications, namely, the application to set aside the abatement caused due to the death of 1st defendant and also to condone the delay in filing such application. She would further submit in her argument that such applications were filed by them on 09.10.2001 explaining the reasons for the delay. She would further submit in her argument that they had explained the delay in taking steps to set aside the abatement caused as well as the condonation of delay and if any arithmetical mistake has been committed in calculating the days, that will not vitiate the requests of the petitioner, she would also submit that since lower court accepted the cause and the calculation of the days of delay it is not important as argued by the learned counsel for the petitioner. She would also submit in her argument that the co-legal representatives of the petitioner had already preferred two revisions in C.R.P.(PD). Nos.519 and 520 of 2003 and they were dismissed by this court on 03.04.2003 at the stage of admission. In the said order, this court held that substantial justice should prevail over technicalities in the matter of condonation of delay and in dealing with the application to set aside the abatement and also to bring the legal representatives of the 1st defendant and accordingly it had not https://hcservices.ecourts.gov.in/hcservices/ confirmed the order of lower court and refused to interfere with the said order of the lower court. She would further submit in her argument that the said order was in consonance with the judgment of the Hon'ble Apex court reported in (2003) 3 SCC 272 in between Sardar Amarjit Singh Kalra (dead) by Lrs and ors vs. Pramod Gupta (smt) (dead) by Lrs and ors. In the said judgment Hon'ble Apex court had laid principles that the rules and procedures under Order 22 should be liberally construed so as to serve as handmaid of justice and as a flexible tool of convenience with a view to do real, effective and substantial justice. Therefore, she would request the court that the lower court had exercised its discretion to accept the explanation for condonation of delay from the date of knowledge till the date of filing of the petitions and therefore, the reference as to the number of days delay in filing the petition is not material and therefore, the revision may be dismissed. 5. Learned counsel for the respondents 2 to 5 would submit in his argument that the revisions filed in C.R.P.PD.Nos.519 and 520 of 2003 were dismissed by this court on 03.04.2003 and therefore, he has no say in these revisions. 6. Learned counsel for the 6th respondent did not advance any argument. 7. I have given anxious thoughts to the arguments advanced by the either side. 8. The facts which are admitted on either side are that the 1st defendant was dead on 2.2.1996 and the factum of his death was informed to this court only on 08.08.2000. Learned counsel for the 1st defendant had also not informed the said fact but it was informed by the learned counsel for the 2nd defendant by an endorsement and it was acknowledged by the learned counsel for the 1st defendant. According to the petitioner, the plaintiff was aware of the said fact only through the endorsement made before the court. The application to implead the parties was filed by the plaintiff on 24.09.2000. Thereafter, it has been pointed out by the petitioner as respondent in that application that the application for impleadment of legal representatives are not sustained in view of the non filing of the application to set aside the abatement caused due to the death of the 1st defendant and also an application to condone the delay caused therein. 9. In the aforesaid circumstances, these two applications in I.A.Nos.191 and 9344 of 2002 have been filed by the 1st respondent/plaintiff on 09.10.2001. According to the learned counsel for the petitioner, the proof of knowledge is necessary as per the provisions of Order 22 Rule 9 C.P.C. No doubt the said provisions require proof. According to the 1st respondent/plaintiff the plaintiff was aware of the death of the 1st defendant only through the said https://hcservices.ecourts.gov.in/hcservices/ endorsement. Therefore, there cannot be any delay till such date as rightly found by the lower court. Thereafter, the plaintiff had filed an application for impleadment on 24.09.2000. Therefore, the court could understand that from the date of knowledge the impleadment application was filed within a period of 47 days. Subsequently the application to set aside the abatement and the condonation of delay caused there in were filed on 09.01.2001. When once the applications for impleadment of legal representatives has been filed, the question of taking steps to set aside the abatement and to condone delay will not arise after the date of filing of the application for impleadment of the legal representatives. Therefore, the delay in setting aside the abatement shall be calculated from the date of non filing of the application for impleadment within the time allowed by law within 90 days from the date of death has to be calculated till the date of filing the application for impleadment of legal representatives as rightly held by the lower court (ie) till 8.8.2000. However, the petitioner has to explain the delay from 8.8.2000 till 24.09.2000 only. Naturally, it is always permissible to take steps to implead the legal representatives. The said period of time taken for filing the legal representatives application is permissible. As per the judgment of Hon'ble Apex court reported in (2003) 3 SCC 272 in between Sardar Amarjit Singh Kalra (dead) by Lrs and ors vs. Pramod Gupta (smt) (dead) by Lrs and ors it has been laid down by the Hon'ble Five member Bench of Apex court would be 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 of 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 into 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 in tact 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....... https://hcservices.ecourts.gov.in/hcservices/ 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 it would otherwise jeopardize an effective adjudication on merits, the rights of other remaining appellants for no fault of them. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttle 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 brining 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 Court to do real, effective and substantial justice. In the light of judgment of Hon'ble Apex court, when we approach the case on hand the 1st respondent/plaintiff who was aware of the death of 1st defendant only on 8.8.2000 had promptly came forward with the application to implead the legal representatives of the deceased 1st defendant and the delay caused there in has been promptly explained by the 1st respondent/plaintiff. Therefore, this court in order to exercise its powers properly and in the interest of justice need not interfere with the reasons given by the lower court in allowing the application to set aside abatement after condoning the delay in taking steps to file the application to set aside abatement. 10. This court at an earlier occasion had also exercised its discretion to confirm the order passed by the lower court in the revision filed by the respondents 2 to 5 in C.R.P.(PD).Nos.519 and 520 of 2003 in its order dated 03.04.2003 at the admission stage itself. Therefore, the said order passed by the lower court is not interferable and accordingly the revisions preferred by the petitioner are liable to be dismissed with costs. Connected C.M.P.No.12589 of 2004 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ kpr To, 1. The XIV Assistant Judge (i/e) The III Assistant Judge, City Civil Court, Chennai 2.The Section Officer, VR Section, High Court, Madras. 1 cc To Mr.A.R.Gokulnath, Advocate, SR.69612 1 cc To Mr.R.Thiagarajan, Advocate, SR.70070 1 cc To Mr.S.Devanathan, Advocate, SR.70521 CRP.NPD.Nos.1323 and 1324 of 2004 & C.M.P.No.12589 of 2004 JRG(CO) sra 28/10/2010 https://hcservices.ecourts.gov.in/hcservices/