THE HON’BLE SRI JUSTICE SANJAY KUMAR C.R.P.Nos.4732 and 4938 of 2006 Date: 24.06.2010 CRP No.4732 of 2006 Between: B. Rajendra and 7 others … Petitioners AND K.C. thimma Reddy and 6 others … Respondents CRP No.4938 of 2006 Between: B. Rajendra and 7 others … Petitioners AND K.C. thimma Reddy and 7 others … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR C.R.P. Nos. 4732 and 4938 of 2006 COMMON ORDER: Defendants 2 and 3 in O.S.No.28 of 2001 having expired pending suit, applications were filed by the plaintiffs/petitioners herein under Section 5 of the Limitation Act seeking condonation of delay in filing petitions for setting aside the abatement of the suit against the deceased defendants. By common order dated 11.07.2006 the trial Court dismissed the applications. Hence, these CRPs. 2. The suit, O.S.No.28 of 2001, was instituted on the file of the Senior Civil Judge, Adoni, by the petitioners herein for declaration of title and recovery of possession. 3. Defendant 2 in the suit died on 10.07.2004 and defendant 3 died on 16.07.2004. I.A.No.50 of 2005 was filed by the plaintiffs/petitioners herein on 30.12.2004 seeking condonation of delay of 83 days in filing the application to set aside the abatement of the suit against the deceased defendant 2. Similarly, I.A.No.52 of 2005 was filed by the plaintiffs/petitioners herein seeking condonation of 77 days delay in filing the application to set aside the abatement of the suit against defendant 3. 4. Both these applications came to be dismissed by the Senior Civil Judge, Adoni. The reason put forth for the delay was that the petitioners/plaintiffs had forgotten to inform their counsel about the death of the defendants 2 & 3. The trial Court found fault with the petitioners for not explaining the delay properly and held that forgetfulness was not sufficient reason to condone the delay. 5. Sri A.V. Sivaiah, learned counsel for the petitioners in these two CRPs, stated that the counsel for the deceased defendants had not complied with the requirement of Order XXII Rule 10-A C.P.C., as no information had been given to the Court or to the opposing counsel with regard to the death of the two defendants. He placed reliance on the judgments in Budumuru Vijayalakshmi v. Ponnada Krishna Rao (died) by LRs[1] and S.A. Kabeer v.Kareemunnisa Begum (died) and others[2] in support of his contention that the failure in complying with Order XXII Rule 10-A C.P.C. should have been taken to be sufficient reason for condonation of the delay by the lower Court. 6. Refuting this contention, Sri G.V. Raghava Reddy, learned counsel for the respondents, stated that the affidavit filed by the plaintiff No.1 in support of the condonation of delay application disclosed that he had completely forgotten to inform the death of the two defendants to his advocate as he was busy in his official duty and as the LR application was not filed within time, the suit against the said defendants had abated. The learned counsel submitted that once the plaintiffs admitted knowledge of the death of the two defendants, it was not open to them to rely upon technical pleas and seek condonation of delay without properly explaining each day’s delay. 7. In B. Vijayalaskhmi this court, while taking note of the fact that the Parliament had amended Order XXII C.P.C. by incorporating Rule 10- A, imposing an obligation on the counsel of a party to intimate the factum of the death of his client to the Court as well as to the counsel appearing for the other party, observed that the basis for inclusion of the provision was because one party to a suit is not expected to know about the death of the other party and the abatement resulting therefrom ought not to cause detriment to such party. This Court held that failure to comply with the requirement under Rule 10-A of Order XXII C.P.C. provides sufficient basis for condonation of delay, unless it is proved or is evident that the factum of death of the party is known to the other party long before the application under Rule 9 of Order XXII C.P.C. is filed. 8. In S.A. Kabeer this Court, relying upon the observations of the Supreme Court in Mithailal Dalsangar Singh v. Annabai Devram Kini[3], held to the effect that technical aspects need not be seriously considered and that unless the party is grossly negligent, the application should be allowed. The observations of the Supreme Court in Mithailal Dalsangar Singh relied upon in S.A. Kabeer are apposite: “the Courts have to adopt a justice oriented approach dictated by the upper most consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitle himself from seeking the indulgence of the Court.” 9. In the present case, no doubt the admission of plaintiff No.1 discloses that he was aware of the death of the deceased defendants 2 and 3. There is however no information as to when he came to know about the same. No efforts were made by the defendants to demonstrate that the plaintiffs had knowledge of the death of these defendants long prior to the institution of the applications for condonation of delay. 10. That apart, it is admitted by the learned counsel for the respondents herein that no intimation was given to the Court or to the opposing counsel under Order XXII Rule 10-A C.P.C. about the death of defendants 2 and 3. Thus, failure to comply with the statutory requirement should necessarily weigh with the Court while considering the condonation of delay applications. This aspect has been completely overlooked by the court below. It is also to be remembered that valuable property rights of the parties are involved in the suit and in such cases, a purely hyper-technical approach is normally to be discouraged. The lower Courts should in the usual course strive to resolve such disputes on merits instead of disposing them of on technicalities of procedure. The delay in filing the applications in the present suit being less than 3 months in both the cases, the approach of the court below appears to be hidebound and hyper-technical. The orders under challenge are therefore set aside and the delay in filing the two applications for setting aside the abatement is condoned. The plaintiffs/petitioners herein may take necessary consequential steps in the suit. 11. Keeping in the mind the inexorable passage of time owing to the pendency of these CRPs, the trial Court is directed to take up the suit on priority basis and dispose of the same expeditiously. 12. The Civil Revision Petitions are accordingly allowed. No costs. __________________ SANJAY KUMAR, J Date: 24.06.2010 Isn [1] 2005 (5) ALD 192 [2] 2004 (5) ALD 67 [3] 2003 (1) Decisions Today 925 (SC)