IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 RSA.No.1039 of 2004 (F) ----------------------------- AS.90/1995 of SUB COURT, TIRUR OS.137/1993 of MUNSIFF COURT, TIRUR .................... APPELLANTS IN RSA/APPELLANTS IN THE LOWER APPELLATE COURT/PLAINTIFFS 1 TO 6, 8 & 9 IN SUIT: -------------------------------------------------------------------------- 1. KUMARAN, S/O. MATTAYI NARAYANAN, RESIDING AT KURUMBATHUR AMSOM, KOODASSERY DESOM, TIRUR TALUK. 2. JANAKI, D/O. DO. IN DO. DO. 3. VALLI, D/O. DO. IN DO. DO. 4. LAKSHMI, D/O. DO. IN DO. DO. 5. DEVAKI, D/O. DO. IN DO. DO. 6. VASANTHA, D/O. DO. IN DO. DO. 7. SANTHAKUMARI, D/O. VELU, DO. DO. 8. MEENAKSHI, W/O. MATTAYI NARAYANAN, IN DO. DO. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.K.JAYAKUMAR RESPONDENTS: ------------------ 1. MAMAN, S/O. KAVULIYALUKKAL KARAPPAN, RESIDING AT KURUMBATHUR AMSOM AND KOODASSERY DESOM, TIRUR TALUK. [RESPONDENT NO.1 IN RSA/RESPONDENT NO.1 IN THE LOWER APPELLATE COURT/ DEFENDANT IN THE SUIT] RSA.No.1039 of 2004 (F) 2 2. KRISHNAN, S/O. MATTAYI NARAYANAN, RESIDING IN DO. DO. [RESPONDENT NO.2 IN RSA/RESPONDENT NO.2 IN THE LOWER APPELLATE COURT/PLAINTIFF NO.7 IN SUIT] ADV. SRI.K.RAMACHANDRAN FOR R1 SRI.P.RAMACHANDRAN FOR R1 SRI.K.RAMACHANDRAN FOR ADDL.R2,3 & 5 SRI.R.SURAJ KUMAR FOR R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ I. A. Nos.2118 of 2008, 2119 of 2008, C. M. Application No.718 of 2008 & R. S. A. No.1039 of 2004 ------------------------------------------------ Dated this the 2nd day of April, 2009 JUDGMENT These are applications filed by the appellants to implead the LRs of deceased first respondent as additional respondents 3 to 11 setting aside abatement condoning delay of 590 days in filing application to set aside abatement. 2. Additional respondents 3, 4 and 6 sought to be impleaded have filed objection objecting to the impleadment setting aside abatement condoning the delay. The objection is that the reasons stated for condonation of delay is that the appellants were not aware of the necessity of impleading legal representatives of the deceased first respondent though the first respondent died on 21/09/06 and that only on receipt of intimation from counsel to R. S. A. No.1039 of 2004 -2- furnish details of the legal representatives for impleadment, he became aware that the LRs are to be impleaded and that it took some time to collect the details of the numerous legal representatives and that therefore, the delay be condoned. According to the respondents, their ignorance of law and procedure is not a ground to condone the delay and to set aside the abatement. 3. It is seen that the deceased first respondent is the sole defendant in the suit as the second respondent is the 7th plaintiff and appellants are plaintiffs 1 to 6 and 8 and 9. When the sole defendant who is the first respondent dies naturally the legal representatives should have been brought on record in time. In the instant case, the first petitioner who is the widow of the deceased sole respondent has sworn that they were aware R. S. A. No.1039 of 2004 -3- of the death of the first respondent on 21/09/06. Their case is that they were not aware of the need to implead the LRs of the first respondent who is the sole defendant in their suit. If at all they were not aware as to the procedure to be adopted on the death of the sole defendant in their case, they should have contacted their counsel and done the needful. They have slept over their rights for more than two years and have filed these applications for impleadment setting aside abatement and to condone the delay of 590 days in filing application to set aside the abatement as late as on 27/09/08. Other than his widow, the late first respondent was having three sons and five daughters and nobody has taken any interest to do the needful in their case despite their knowledge that the sole defendant in their case is dead. R. S. A. No.1039 of 2004 -4- In the circumstances, I do not see any ground to allow the impleadment of the LRs of the deceased first respondent as additional respondents 3 to 11 setting aside the abatement condoning the delay of as much as 590 days in filing the application to set aside the abatement. 4. In the result, I dismiss all these applications. R.S.A.1039/04 I.A.2118/08, I.A.2119/08 and C.M. Application No.718/08 are dismissed today disallowing impleadment of LRs of the deceased first respondent setting aside abatement condoning the inordinate delay of 590 days in fling the application to set aside abatement. The first respondent was the sole defendant in the suit as the second respondent is the 7th plaintiff who goes along with the appellants. R. S. A. No.1039 of 2004 -5- The result is that this appeal has abated. In the result, this appeal is closed. K.P.BALACHANDRAN, JUDGE kns/-