IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24-03-2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN C.R.P.(PD) Nos.1112, 1113 and 1114 of 2009 and M.P.Nos.1+1+1 of 2009 C.R.P.(PD) No.1112 of 2009 Arulmighu Patteswarar Swamy Thirukovil Represented by its Executive Officer, Perur, Coimbatore-641 010. .. Petitioner. Versus Gnanadesigan (Died) 1.N.Muralidaran 2.S.Ramanan 3.Sathish 4.Saguntala 5.Meenakshi .. Respondents
PRAYER in C.R.P.(PD) No.1112 of 2009: Petition filed under Article 227 of the Constitution of India, seeking to set aside the order in I.A.No.84 of 2008 in O.S.No.1920 of 2006, dated 18.11.2008, passed by the learned III Additional District Munsif, Coimbatore and allow I.A.No.84 of 2008.
For Petitioner : Mr.Dr.A.E.Chelliah, Senior Advocate for
Ms.C.Vasantha Kumari Chelliah
For Respondents: No Appearance (R1)
Mr.S.Parthasarathy, Senior Advocate for
Mr.R.Sivakumar (R2)
C.R.P.(PD) No.1113 of 2009
Arulmighu Patteswarar Swamy Thirukovil
Represented by its Executive Officer,
Perur, Coimbatore-641 010. .. Petitioner
Versus
Gnanadesigan (Died)
1.N.Muralidaran
2.S.Ramanan .. Respondents
PRAYER in C.R.P.(PD) No.1113 of 2009: Petition filed under Article 227 of the Constitution of India, seeking to set aside the order in I.A.No.286 of 2008 in O.S.No.1920 of 2006, dated 18.11.2008, passed by the learned III Additional District Munsif, Coimbatore and allow I.A.No.286 of 2008.
For Petitioner : Mr.Dr.A.E.Chelliah, Senior Advocate for
Ms.C.Vasantha Kumari Chelliah
For Respondents: No Appearance (R1)
Mr.S.Parthasarathy, Senior Advocate for
Mr.R.Sivakumar (R2)
C.R.P.(PD) No.1114 of 2009
Arulmighu Patteswarar Swamy Thirukovil
Represented by its Executive Officer,
Perur, Coimbatore-641 010. .. Petitioner
Versus
Gnanadesigan (Died)
1.N.Muralidaran
2.S.Ramanan .. Respondents
PRAYER in C.R.P.(PD) No.1114 of 2009: Petition filed under Article 227 of the Constitution of India, seeking to set aside the order in I.A.No.285 of 2008 in O.S.No.1920 of 2006, dated 18.11.2008, passed by the learned III Additional District Munsif, Coimbatore and llow I.A.No.285 of 2008.
For Petitioner : Mr.Dr.A.E.Chelliah, Senior Advocate for
Ms.C.Vasantha Kumari Chelliah
For Respondents: No Appearance (R1)
Mr.S.Parthasarathy, Senior Advocate for
Mr.R.Sivakumar (R2)
COMMON ORDER
Inasmuch as the issues arising for consideration in all these civil revision petitions are one and the same, a common order is being passed.
2. The Civil Revision Petition No.1112 of 2009 has been filed against the fair and decretal order, dated 18.11.2008, made in I.A.No.84 of 2008, in O.S.No.1920 of 2006, on the file of the III Additional District Munsif Court, Coimbatore. Civil Revision Petition No.1113 of 2009 has been filed against the fair and decretal order, dated 18.11.2008, made in I.A.No.286 of 2008, in O.S.No.1920 of 2006, on the file of the III Additional District Munsif Court, Coimbatore. Civil Revision Petition No.1114 of 2009 has been filed against the fair and decretal order, dated 18.11.2008, made in I.A.No.285 of 2008, in O.S.No.1920 of 2006, on the file of the III Additional District Munsif Court, Coimbatore.
3. In the above civil revision petitions, the petitioner temple had filed the suit, in O.S.No.1920 of 2006, on the file of the III Additional District Munsif Court, Coimbatore, praying for a decree, declaring the plaintiffs title to the suit property and to direct the defendants, their men and agents and persons in possession of the suit property, to deliver vacant possession of the same to the plaintiff temple and for a permanent injunction restraining the defendants and the others from, in any manner, putting up constructions in the suit property. The respondents in the above civil revision petitions are the defendants and their legal heirs in the said suit.
4. The petitioner temple had filed I.A.No.84 of 2008 praying that the trial Court may be pleased to implead the proposed defendants, as defendants 4 to 6 in the suit, in O.S.No.1920 of 2006. I.A.No.285 of 2008 has been filed by the petitioner temple praying that the trial Court may be pleased to condone the delay of 621 days in filing the application to set aside the abatement of the suit. I.A.No.286 of 2008 has been filed by the petitioner temple to set aside the abatement of the suit for not taking steps to bring the legal representatives of the first defendant, as a party to the suit, after his death was known to the petitioner temple.
5. The trial Court, by its fair and decretal order, dated 18.11.2008, had dismissed the interlocutory applications filed by the petitioner temple. The trial Court had found that N.Gnanadesikan, the first defendant in the suit, in O.S.No.1920 of 2006, had died, on 24.11.2004. However, the suit, in O.S.No.1920 of 2006, had been filed by the petitioner temple, only on 23.8.2006. Even at the time of the issuing of the notice through the Court, on 14.9.2006, the petitioner temple had known about the death of the first defendant. However, no action had been taken by the petitioner temple to implead the legal heirs of the first defendant in the suit, in O.S.No.1920 of 2006.
6. Thereafter, the interlocutory application, in I.A.No.84 of 2008 has been filed for impleading the legal heirs of the first defendant, as defendants 4 to 6 in the suit. The trial Court had also stated that even though the petitioner temple had known about the death of the first defendant the application to set aside the abatement had been filed by the temple only in the year, 2008, in I.A.No.286 of 2008, and the petitioner temple had also filed an application, in I.A.No.285 of 2008, to condone the delay of 621 days in filing the setting aside abatement petition. Since, the delay in filing the setting aside abatement petition had not been condoned, the trial Court had dismissed the applications for setting aside the abatement and for impleading the legal heirs of the first defendant, as defendants 4 to 6 in the suit, in O.S.No.1920 of 2006.
7. The trial Court had dismissed the application filed by the petitioner temple to condone the delay in filing the setting aside abatement application stating that the petitioner temple had not shown sufficient cause or reason for the delay in filing the setting aside abatement application. The reasons stated by the petitioner temple were not accepted by the trial Court. In such circumstances, the petitioner temple has preferred the present civil revision petitions before this Court.
8. The learned counsel appearing on behalf of the petitioner temple had stated that, I.A.No.84 of 2008, had been filed by the petitioner for impleading the legal heirs of N.Gnanadesikan, the defendant in the suit, in O.S.No.1920 of 2006, as he had sold away the property gifted to the petitioner temple. The suit has been filed by the petitioner temple for setting aside the sale of the suit property, which had been gifted to the petitioner temple, for the purpose of performing charitable functions, through court auction. The legal heirs of the donor had got the suit property sub-divided and had allowed a part of the property attached by way of execution proceedings, pursuant to the court decree passed against them, for the non payment of a loan. In such circumstances, the petitioner temple had filed the suit, in O.S.No.1920 of 2006, on the file of the III Additional District Munsif Court, Coimbatore.
9. Only after the filing of the said suit it was known that N.Gnanadesikan, the first defendant in the suit had died. The details of the legal heirs of N.Gnanadesikan could not be gathered, immediately. Even though the necessary affidavits had been signed by the Executive Officer of the petitioner temple, the learned counsel appearing on behalf of the petitioner temple had not filed the affidavits and the necessary petitions in time. Therefore, a delay of 621 days had occurred in filing the application for setting aside the abatement.
10. Mr.A.E.Chelliah, the learned Senior Counsel, appearing on behalf of the petitioner temple, had submitted that the suit, in O.S.No.1920 of 2006 and the subsequent interlocutory applications had been filed by the petitioner temple, only in good faith. The petitioner temple was not aware of the death of the first defendant at the time of the filing of the suit. Further, the property in question had been sold by way of a Court auction, as one of the grand sons of the donor had borrowed a certain amount of money and he had submitted to the decree filed against him in a civil suit filed in the year, 1999. The petitioner temple was not a party to the said proceedings.
11. Only in the year, 2006, the petitioner temple had come to know about the death of the first defendant. Immediately thereafter, the petitioner temple had taken the necessary steps to implead the legal heirs of the first defendant. However, due to the fault of the counsel appearing on behalf of the petitioner temple there has been some delay in filing the application for setting aside the abatement. The delay is neither willful nor wanton. In fact, there may not be any necessity to file an application to set aside the abatement since, the first defendant had died even before the filing of the suit.
12. Per contra, Mr.Parthasarathy, the Senior Counsel, appearing on behalf of the first and the second respondents had submitted that the petitioner temple had not explained the reasons for the delay in filing the application to set aside the abatement, sufficiently. When the first defendant had died, on 24.11.2004, the suit in O.S.No.1920 of 2006, had been filed only in the year, 2006. He had also submitted that, in respect of the order passed in I.A.No.286 of 2008, only an appeal would lie under Section Order XLIII Rule 1 of the Civil Procedure Code, 1908. Only with regard to the other orders a revision may lie. However, in view of the fact that the first defendant had died even before the filing of the suit, in O.S.No.1920 of 2006, all the three applications filed by the petitioners are misconceived.
13. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondents and on a perusal of the records available, this Court finds it appropriate to set aside the orders, dated 18.11.2008, made in I.A.Nos.84 and 285 of 2008. It is made clear that it would be open to the petitioner temple to show good faith for approaching the Court, by way of a suit, in O.S.No.1920 of 2006, belatedly, after the death of the first defendant, in view of the decisions, reported in Karuppaswamy V. C.Ramamurthy (AIR 1993 SC 2324) and C.Saroja V. Shriram City Union Finance Ltd. (2009(1) CTC 786).
14. With regard to the order passed by the trial Court, in I.A.No.286 of 2008, the civil revision petition stands dismissed, for the reason that only an appeal, Under Order XLIII Rule 1 of the Civil Procedure Code, 1908, would lie against the order passed by the trial Court, on 18.11.2008.
Accordingly, the civil revision petitions, in C.R.P.Nos.1112 and 1114 are ordered accordingly and the civil revision petition in C.R.P.No.1113 of 2008 stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
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