IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 WP(C).No. 29482 of 2008(I) -------------------------- OS.2222/2003 of II ADDL.M.C.,THRISSUR .................... PETITIONER(S): --------------- 1. SARADA, W/O.VELAYUDHAN (LATE), THAIKOOT, VELUTHUR VILLAGE, KAIPILLY DESOM, THRISSUR TALUK. 2. SATHYAN, S/O.VELAYUDHAN (LATE), THAIKOOT, VELUTHUR VILLAGE, KAIPILLY DESOM, THRISSUR TALUK. 3. INDIRA, D/O.VELAYUDHAN (LATE), THAIKOOT, VELUTHUR VILLAGE, KAIPILLY DESOM, THRISSUR TALUK. 4. GOPI, S/O.VELAYUDHAN (LATE), THAIKOOT, VELUTHUR VILLAGE, KAIPILLY DESOM, THRISSUR TALUK. 5. SUNILKUMAR, S/O.VELAYUDHAN (LATE), THAIKOOT, VELUTHUR VILLAGE, KAIPILLY DESOM, THRISSUR TALUK. 6. SHOBANA, W/O.SUNDARAN (LATE), THAIKOOT, VELUTHUR VILLAGE, KAIPILLY DESOM, THRISSUR TALUK. 7. KIRANA, D/O.SUNDARAN (LATE), THAIKOOT, VELUTHUR VILLAGE, KAIPILLY DESOM, THRISSUR TALUK. 8. JYOTHI, S/O.SUNDARAN (LATE), THAIKOOT, VELUTHUR VILLAGE, KAIPILLY DESOM, THRISSUR TALUK. 9. HARISH (MINOR), S/O.SUNDARAN (LATE), THAIKOOT, VELUTHUR VILLAGE, KAIPILLY DESOM, THRISSUR TALUK, REP. BY MOTHER & GUARDIAN, SHOBANA, W/O.SUNDARAN (LATE), THAIKOOT, VELUTHUR VILLAGE, KAIPILLY DESOM, THRISSUR TALUK.(6TH RESPONDENT). BY ADV. SRI.DINESH MATHEW J.MURICKEN W.P.(C) No. 29482 of 2008 -:2:- RESPONDENT(S): --------------- 1. KARAMBI, S/O.PARANGODAN (LATE) VALIYAVEETTIL HOUSE, PARAKKAD VILLAGE, PARAKKAD DESOM, THRISSUR TALUK. 2. MANI, W/O.MANI, D/O.PARANGODAN (LATE) VALIYAVEETTIL HOUSE, PARAKKAD VILLAGE, PARAKKAD DESOM, THRISSUR TALUK. 3. KUNHIPPARU, D/O.PARANGODAN (LATE) VALIYAVEETTIL HOUSE, PARAKKAD VILLAGE, PARAKKAD DESOM, THRISSUR TALUK. 4. MOHANAN, S/O.PARANGODAN (LATE) VALIYAVEETTIL HOUSE, PARAKKAD VILLAGE, PARAKKAD DESOM, THRISSUR TALUK. 5. THANKA, D/O.PARANGODAN (LATE) VALIYAVEETTIL HOUSE, PARAKKAD VILLAGE, PARAKKAD DESOM, THRISSUR TALUK. 6. KUNJAMMU, D/O.PARANGODAN (LATE) VALIYAVEETTIL HOUSE, PARAKKAD VILLAGE, PARAKKAD DESOM, THRISSUR TALUK. 7. UNNICHEKKAN, S/O.RAMAKRISHNAN (LATE) VALIYAVEETTIL HOUSE, VELUTHUR VILLAGE, KAIPILLY DESOM, THRISSUR TALUK. 8. KUTTAPPAN, S/O.RAMAKRISHNAN (LATE) VALIYAVEETTIL HOUSE, VELUTHUR VILLAGE, KAIPILLY DESOM, THRISSUR TALUK. 9. MOHANAN, S/O.RAMAKRISHNAN (LATE) VALIYAVEETTIL HOUSE, VELUTHUR VILLAGE, KAIPILLY DESOM, THRISSUR TALUK. 10. VINOD, S/O.UNNICHEKKAN, VALIYAVEETTIL HOUSE, VELUTHUR VILLAGE, KAIPILLY DESOM, THRISSUR TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.RAMKUMAR ...................................... W.P.(C) No. 29482 of 2008-I ....................................... DATED: 16TH DAY OF OCTOBER 2008 JUDGMENT Petitioners herein are plaintiffs 1 and 3 to 16 and the legal representatives of the 2nd plaintiff (who died pending) suit in O.S. 2222/03 on the file of the II Addl. Munsiff's Court, Thrissur. The said suit instituted against the defendants, who are 10 in number, is one for specific performance of an agreement for sale of immovable property. Consequent on the death of the 2nd plaintiff on 26-1-2006 the surviving plaintiffs filed Ext.P5 as I.A. No. 9585 of 2007 to condone the delay of 531 days in filing the petition to set aside the abatement. The surviving plaintiffs also filed Ext.P6 petition as I.A. 9584 of 2007 to set aside the abatement caused on the death of the 2nd plaintiff. The surviving plaintiffs also filed Ext.P7 petition as I.A. 9687 of 2007 for impleading the legal representatives of the 2nd plaintiff. The trial court dismissed I.A. 9585 of 2007 by refusing to condone the delay. Consequently, the other two applications were also dismissed as per Ext.P6 and P7 orders dated 16-01-2008. Hence this Writ Petition. W.P.(C) No. 29482 of 2008-I -:2:- 2. Eventhough the learned counsel appearing for the Writ Petitioners contended that in a suit of this nature there cannot be any abatement of the suit consequent on the death of one of the plaintiffs, I am not inclined to accept the said contention. The remedy of the petitioners is to file an appeal by having recourse to order 43 Rule 1 (k) C.P.C. The trial court should not have taken an unrealistic view in dealing with the delay petition in the light of the general trend leaning in favour of condonation of delay. However, it is for the appellate court, if and when approached, to consider the matter. Accordingly, leaving the petitioners to the remedy of an appeal, this Writ Petition is dismissed. In case the petitioners file an appeal before the appellate court within two weeks from today, the trial of the suit shall stand adjourned till and subject to the disposal of the said appeal. Dated this the 16th day of October 2008. Sd/-V. Ramkumar, Judge. ani/ /true copy/