IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 12TH MARCH 2010 / 21ST PHALGUNA 1931 WP(C).No. 33480 of 2008(I) ------------------------------------- AGAINST THE ORDER IN IA 439 & 440/08 IN OS.593/2004 of I ADDL. SUB COURT,TRIVANDRUM . .................... PETITIONER(S): ------------------------- M.KESAVAKUMAR, S/O.K.MADHAVAN, GURUDEV VILASOM, PALLIMUKKU, PETTAH P.O. THIRUVANANTHAPURAM. BY ADVS.MR.WILSON URMESE MR.M.C.ANTONY RESPONDENT(S): ----------------------- 1. THANKAPPA KURUP, S/O.NEELAKANTA PILLAI, TC 13/132, KANNANMOOLA, THIRUVANANTHAPURAM. 2. AMMINIKUTTY, W/O.LATE THANKAPPA KURUP, TC 13/132, KANNANMOOLA, PETTAH P.O. THIRUVANANTHAPURAM. 3. REKHA, D/O.LATE THANKAPPA KURUP, RESIDING AT TC 13/132, KANNANMOOLA, PETTAH P.O., THIRUVANANTHAPURAM. 4. BINDHU, D/O.LATE THANKAPPA KURUP, RESIDING AT TC 13/132, KANNANMOOLA, PETTAH P.O., THIRUVANANTHAPURAM. R2 TO R4 BY ADV. SRI.J.S.AJITHKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/03/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 33480/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. 593/2004 ON THE FILE OF THE IST ADDL. SUB COURT, THIRUVANANTHAPURAM. P2:- COPY OF THE AGREEMENT DTD. 10.12.02. P3:- COPY OF THE ORDER DTD. 24.9.08 IN IA. 439/08 & IA 440/08 IN OS. 593/04. RESPONDENT'S EXHIBITS R3(a):- COPY OF THE IA. 4161/05 DTD. 26.10.05 IN OS. 593/04. R3(b):- COPY OF THE OBJECTION OF THE RESPONDENTS IN IA. 4161/05. R3(c):- COPY OF THE OBJECTION IN IA. 440/08 DTD. 1.7.08 IN OS. 593/04. TRUE COPY P.S. TO JUDGE tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 33480 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of March, 2010. JUDGMENT Aggrieved by Ext.P3 order, the petitioner has filed this petition under Article 227 of the Constitution of India. 2. Petitioner instituted O.S. 593 of 2004 before the First Additional Sub Court, Thiruvananthapuram, which is a suit for money against one Thankappa Kurup. It is not in dispute that Thankappa Kurup was the sole defendant in the suit. He died on 14.6.2005. I.A. 4161 of 2005 was filed on 26.10.2005 to implead the legal heirs of late Thankappa Kurup. That was dismissed for default. Consequently the suit was also dismissed. Petitioner filed I.A. 4948 of 2006 for restoration of the suit. That was also dismissed for default. Then I.A. 5756 of 2007 was filed to review the order in I.A. 4948 of 2006. That was allowed and the restoration petition was WPC. 33480/2008. 2 restored to file. There after the petitioner seems to have filed two applications, I.A. Nos. 439 of 2008 and 440 of 2008 to implead the legal heirs of late Thankappa Kurup, who was the sole defendant in the suit and also to condone the delay in filing the said petition. By a considered order, the court below dismissed the petitions. That order is assailed in this writ petition. 3. Whatever may be the merits of the petitions filed by the petitioner, this writ petition will have to fail on a short ground. Admittedly the sole defendant died on 14.6.2005. Petition for impleading was filed only on 26.10.2005, that was beyond 90 days period contemplated by the provisions of the Limitation Act. Therefore the suit had abated. Even though so many petitions have been filed, at no point of time the petitioner has filed a petition to set aside the abatement. Petitioner says that he may be given an opportunity to contest the suit. 4. There is no justification in the prayer made by the petitioner. Learned counsel appearing for the WPC. 33480/2008. 3 respondents drew the attention of this court to Ext.R3(a), which is a petition said to have been filed by the petitioner for impleading the legal heirs. In that, the legal heirs are shown as the wife and children of late Narayana Kurup. That shows the care taken in prosecuting the case. Whatever that be, the fact remains that on failure to implead the legal heirs of the deceased sole defendant, the suit stood abated automatically. At no point of time, the petitioner has filed a petition to set aside the abatement. Petitions to implead the legal heirs and to condone the delay without a petition to set aside the abatement serve no purpose. Even if the impugned orders are set aside, that will not be of any benefit to the petitioner, because the suit has already abated. This writ petition is without merits and it is accordingly dismissed. P. BHAVADASAN, JUDGE sb.