THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL REVISION PETITION No.6069 OF 2004 DATED: 10-02-2011 Between: P.Chalapathi (died) & 4 others. .... PETITIONERS And T.S.Arshadulla & 2 others. .... RESPONDENTS ORDER: This Civil Revision Petition is directed against the order, dated 13.07.2004, in I.A.No.290 of 1999 in O.P.No.342 of 1996 on the file of the learned Senior Civil Judge, Piler, wherein the said application filed by the petitioners herein-plaintiffs under Section 5 of the Limitation Act to condone the delay of 325 days in filing a petition under Order XXII Rule 9 CPC, to set aside the abatement order, was dismissed. 2. Heard learned counsel for the petitioner. None appeared for the respondents. Perused the record. 3. Petitioners herein filed the suit for partition. During the pendency of the suit, the original sole plaintiff died. As no steps are taken in time to bring the legal representatives on record, the suit was dismissed as abated. Subsequently, petitioners 2 to 5 herein-wife and children of the deceased-1st plaintiff filed applications seeking to come on record as legal representatives and also for setting aside the abatement and to condone the delay of 325 days in filing the petitions. The trial Court dismissed I.A.No.290 of 1999 on the ground that in the affidavit and evidence of P.W.1, different versions were given explaining the delay in filing the applications. In the affidavit, filed in support of the application, petitioners stated that when they were shifting their house about one year after the death of the husband of the 2nd petitioner herein, they came to know about the filing of the suit and in the evidence, P.W.1 stated that she came to know about the suit when the advocate addressed a post card to her. Strictly speaking, there is no contradiction between the two versions and both are possible also. 4. Be that as it may, having regard to the fact that the suit is one for partition and on account of the death of the 1st plaintiff, his legal representatives-petitioners 2 to 5 have to come on record to prosecute the matter and the two versions of the petitioners placed before the Court in explaining the delay being probable, it is considered that the petitioners be given an opportunity for pursuing the matter to be decided on merits instead of rejecting the suit on technical grounds. 5. In a decision reported in K.RUDRAPPA v. SHIVAPPA[1], the apex Court held that hyper-technical view ought not to have been taken in rejecting the application filed to bring the legal representatives of the deceased on record. 6. In view of the above decision and in order to render full and complete justice to the parties, it is considered that the delay of 325 days in filing the application to bring the petitioners 2 to 5 on record, being the legal representatives of the deceased-1st plaintiff, can be condoned, however, subject to payment of costs of Rs.500/- (rupees five hundred only) by the petitioners to the other side within a period of two weeks from the date of receipt of a copy of this order. In default of payment of costs, I.A.No.290 of 1999 stands dismissed. 7. Accordingly, Civil Revision Petition is disposed of. There shall be no order as to costs. _______________________ G.V.SEETHAPATHY, J 10th February, 2011. Tsy [1] 2004(1) DECISIONS TODAY (SC) 884