IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.12.2006
CORAM:
THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN
C.R.P.No.1434 of 2006
and
C.M.A.No.2822 of 2006
+ + + + +
C.R.P.No.1434 of 2006:
1. Mohanraj
2. Minor Kalimuthu @ Prabhu
rep. by next friend
K.Shanmugam ..Petitioners
versus
1. Sri Vanabadrakaliamman Temple
by its Executive Officer.
2. The District Collector
Coimbatore. ..Respondents
C.M.A.No.2822 of 2006:
1. Mohanraj
2. Minor Kalimuthu @ Prabhu
rep. by next friend
K.Shanmugam ..Appellants
(Cause title accepted
vide order of Court
dated 23.8.2006 made in
M.P.No.1 of 2006 in
C.M.A.SR.No. 61542 of 2006.)
versus
1. Sri Vanabadrakaliamman Temple
by its Executive Officer.
2. The District Collector
Coimbatore. ..Respondents
+ + + + +
PRAYER:
C.R.P.No.1434 of 2006 is filed under Section 115 of the Civil Procedure Code against the order dated 13.2.2006 made in I.A.No.754 of 2003 in A.S.No.104 of 1992 on the file of the II Additional Subordinate Judge, Coimbatore.
C.M.A.No.2822 of 2006 is filed under Order 41, Rule 1, C.P.C., against the order dated 13.2.2006 made in I.A.No.245 of 2003 in A.S.No.104 of 1992 on the file of the II Additional Subordinate Judge, Coimbatore.
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For Petitioners in CRP. No.1434/2006 & Appellants in CMA. No.2822/2006 :
: Mr.S.V.Jayaraman, Senior Advocate for Mr.A.U.Arun
For 1st respondent in CRP. No.1434/2006 & CMA. No.2822/2006 :
: Mr.R.T.Doraisamy
For 2nd respondent in CRP. No.1434/2006 & CMA. No.2822/2006 :
: Mr.V.Srikanth, Addl. Govt. Pleader (C.S.)
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ORDER
C.R.P.No.1434 of 2006 arises out of the order dated 13.2.2006 passed in I.A.No.754 of 2003 in A.S.No.104 of 1992 and C.M.A.No.2822 of 2006 arises out of the order dated 13.2.2006 passed in I.A.No.245 of 2003 in A.S.No.104 of 1992. Both the orders are passed by the II Additional Subordinate Judge, Coimbatore.
2. The petitioners in C.R.P.No.1434 of 2006 had preferred this revsion petition challenging the order dismissing the application filed to condone the delay in preferring an application to implead the legal representatives for prosecuting I.A.No.245 of 2003 in A.S.No.104 of 1992 on the file of the II Additional Subordinate Judge, Coimbatore.
3. The petitioners herein are the grandsons – the legal representatives of one R.Thangavel. The said Thangavel filed a suit for declaration of title and permanent injunction in O.S.No.2218 of 1984. The suit was decreed. The defendant filed an appeal in A.S.No.104 of 1992 on 2.4.1992 and succeeded therein. However, the aggrieved plaintiff filed I.A.No.289 of 1995 to set aside the ex parte judgment passed in the appeal. There was a delay of 90 days in filing the said application. The Court below dismissed the I.A. under order dated 6.3.1997. Aggrieved of this, a Civil Revision Petition was filed before this Court in C.R.P.No.1409 of 1997. By order dated 5.3.1998, this Court allowed the revision petition and set aside the order in I.A.No.289 of 1995 on payment of cost of Rs.1,000/- and directed the Court below to consider the application filed for setting aside the order on merits, after hearing both parties.
4. The order of this Court was passed in the year 1998. Thereafterwards, it is stated that nothing happened on the hearing of the I.A. However, the plaintiff who preferred the petition to set aside the ex parte order in appeal, died on 9.2.2002. Under a will dated 5.11.1990, he bequeathed his rights to his minor grand children through his first son and second son. The will was probated. The minor grand children of the deceased Thangavel, through a third party claiming themselves to be next friend representing the minor grand children of the deceased, filed I.A.No.754 of 2003 to condone the delay of 295 days in setting aside the abatement, which was beyond the 90 days to implead the legal representatives. It is stated in the petition that since the father of the petitioners had developed a hostile attitude towards the petitioners, the minor grand children, the legal representatives did not know the pendency of the appeal, and hence, this application was taken to condone the delay. The respondents before this Court contested the merits of the petition. By order dated 13.2.2006, the II Additional Subordinate Judge, Coimbatore, considered the application to condone the delay in setting aside the abatement and accepted the plea of the petitioners to the extent of condoning the delay, following the decision reported in (2003) 3 MLJ 369 (K.THIRUMURTHY Vs. MUTHAMMAL). However, since the procedure therefor was not properly adopted by the petitioners therein in setting aside the abatement and to bring on record the legal representatives, the petition was dismissed. Aggrieved of this, this Civil Revision Petition is preferred as stated above.
5. As for the C.M.A., it is seen that in view of the dismissal of I.A.No.754 of 2003, the application filed originally by Thangavel to condone the delay in setting aside the ex parte order in I.A.No.245 of 2003 was also rejected. Against this, C.M.A.No.2822 of 2006 is preferred.
6. Learned senior counsel Mr.S.V.Jayaraman, appearing for the revision petitioner and the appellant herein, placed reliance on the decision of the Supreme Court reported in (2004) 7 SCC 482 (GANESHPRASAD BADRINARAYAN LAHOTI Vs. SANJEEVPRASAD JAMNAPRASAD CHOURASIYA) and submitted that the dismissal of the delay petition, although satisfied of the delay, solely on the technical ground that separate application for setting aside of the abatement and to bring on the legal representatives was not filed in this case is totally unsustainable in law. He drew my attention particularly to paragraph 8 at page 485 in the decision where the Supreme Court held that rejection of an application on a technical view that there was no independent application to set aside the abatement and to bring the legal representatives on record was unsustainable and incorrect; that the Court should have addressed itself to the merits of the delay in bringing on record the legal representatives. Learned senior counsel pointed out that the said decision was followed in 2004 (5) CTC 365 (RUDRAPPA Vs. SHIVAPPA). Learned senior counsel drew my attention to paragraph 10, wherein, the Supreme Court held that the Court below ought not to have taken a hypertechnical view in rejecting an application to bring on record the legal representatives on the ground that no separate application was filed for setting aside the abatement and that there was no prayer for condonation of delay.
7. It may be noted, in the case reported in 2004 (5) CTC 365 (RUDRAPPA Vs. SHIVAPPA), the Supreme Court held that technical objection should not come in doing full and complete justice between the parties. Consequently, the Apex Court set aside the order passed by the High Court, confirming the order of the Court below to bring on record the legal representatives. Learned senior counsel also referred to the decision of this Court in 1995 (1) CTC 479 (SUBRAMANIAM Vs. PERUMAYEE AND ANOTHER), holding that in the case of an application filed for bringing on record the legal representatives wherein there was a delay, the application filed to bring on record the legal representatives should be construed to contain the prayer for setting aside the abatement and condonation of delay in as much as without condoning the delay and setting aside the abatement, the legal representatives could not be brought on record. This Court held that merely because separate applications were not filed as per the procedure along with the application to bring on record the legal representatives, the Court would not be justified in dismissing the application and that the application must be deemed to have been filed to set aside the abatement to condone the delay. This Court held that such a view would only advance the cause of justice. Learned senior counsel also referred to the decision reported in AIR 1984 Kerala 184 (KUNHIKAYYUMMA Vs. UNION OF INDIA), wherein, the Kerala High Court held that the procedure under Order 22 ought not to be subjected to narrow construction and hypertechnical interpretation. Learned senior counsel also referred to the decision of the Allahabad High Court reported in AIR 2003 Allahabad 299 (KAMLESH Vs. TEKCHAND) and submitted that where an applicant files an application for condoning the delay and for bringing on record the legal representatives, the prayer for setting aside the abatement is implicit in the prayer for substitution. A perusal of the judgment shows that the decision of the Kerala High Court reported in AIR 1984 Kerala 184 (KUNHIKAYYUMMA Vs. UNION OF INDIA), was referred to, to come to the conclusion that in a case where an application is filed to bring on record the legal representatives, the prayer to set aside the abatement should be taken as implicit in the prayer for substitution. In the circumstances, learned senior counsel submitted that the view of the Court below is too hypertechnical and it ought to have seen that given the cause of bringing on record the legal representatives, the proper course for the Court would be to allow the petitioners as the legal representatives to prosecute further the I.A. preferred by the deceased.
8. Learned counsel for the first respondent, however, resisted the submission made, stating that it is not open to the petitioners/appellants herein to come on a second round after the order in the C.R.P. made in 1998. He pointed that as against the order passed in A.S.No.104 of 1992, no appeal is pending and the order has reached a finality. He questioned the role of the next friend of the minors to prosecute this application in I.A.No.754 of 2003, though the parents of the minors are alive and the petitioner therein, admittedly, was not the natural guardian. He also pointed out that on an earlier occasion, the mother of the minor children preferred a writ petition in W.P.No.17360 of 2003, challenging the proposed action taken to evict the petitioners herein from the land which was the subject matter of the proceedings before the Court below. By order dated 25.6.2003, this Court dismissed the writ petition directing the parties to work out their remedies in a civil Court. Learned counsel for the first respondent pointed out to this and submitted that it is not open to the petitioners/appellants herein to canvass the remedy herein once again before this Court.
9. I do not agree with the submission made by the learned counsel for the respondents. It must be noted that the petition sought to be pursued before the Court below by the present appellants/revision petitioners as the legal representatives was the delay condonation petition filed by the deceased Thangavel to set aside the ex parte order. This Court, by order dated 5.3.1998 in C.R.P.No.1409 of 1997, condoned the delay and set aside the order passed in I.A.No.289 of 1995 on payment of cost and directed the Court below to consider the application filed for setting aside the order made in appeal on merits and in accordance with law. Consequently, when the I.A. is admittedly still pending on the file of the Court below for consideration on merits, the submission on behalf of the learned counsel for the first respondent on the maintainability of the C.R.P. is not sustainable. Whatever be the merits of I.A.No.754 of 2003 to be prosecuted through a third party as a next friend, the merits of the present C.R.P. arising out of the dismissal of the I.A. filed by the legal representatives cannot be ignored in the face of the decision of the Supreme Court reported in (2004) 7 SCC 482 (GANESHPRASAD BADRINARAYAN LAHOTI Vs. SANJEEVPRASAD JAMNAPRASAD CHOURASIYA), followed in 2004 (5) CTC 365 (RUDRAPPA Vs. SHIVAPPA). The Court below, hence, erred in rejecting this application on a hypertechnical ground on the non-filing of the application to set aside the abatement and bring on record the legal representatives is erroneous and that the same is liable to be set aside. Hence, the view of the Court below in rejecting I.A.No.754 of 2003 to condone the delay in filing the petition to bring on record the legal representatives is set aside. Consequently, the Civil Revision Petition is allowed. In view of the order passed in the Civil Revision Petition, the Civil Miscellaneous Appeal also deserves to be allowed and the order set aside.
10. Learned counsel for the first respondent pointed out that they had taken an objection in the counter affidavit as regards the capacity and competency of the next friend to file this petition. He submitted that when the parents are admittedly alive, it is not known how a third party had assumed the role of a next friend of the petitioners minors, to pursue the proceedings.
11. It may be noted that the Court below had rejected the application filed in I.A.No.754 of 2003 only on the ground that the petitioners therein had not filed an independent petition to set aside the abatement. In the light of the order passed by me allowing the Civil Revision Petition, and consequently the appeal, the matter is remitted back to the Court below, namely, the Sub Court, Coimbatore, to consider and pass orders on the merits of the I.A. to set aside the abatement and bring on record the legal representatives and proceed thereafter with the main contentions in the applications to set aside the ex parte order. It is no doubt true that the respondents have not filed a separate appeal on the aspect of competency of the third party making an application on behalf of the minors before this Court. However, considering the rejection of the petition filed by the petitioners herein, apparently there was no necessity to consider this objection made by the respondents. In the light of the objections taken herein in the counter affidavit as well as in the submissions made before this Court, in fairness to the parties concerned, it is open to the parties to raise their objections in I.A.No.754 of 2003 before the Court below. If and when such objection is raised, the Court below will consider the objection taken by the parties and pass orders in accordance with law. Considering the pendency of this I.A., the Court below shall take these applications out of turn and deal with them to be disposed of within a period of four months from the date of receipt of a copy of this order.
The Civil Revision Petition is allowed to this extent and consequently, the Civil Miscellaneous Appeal is also allowed. Consequently, connected C.M.P.No.2 of 2006 in C.M.A.No.2822 of 2006 is closed. There will, however, be no order as to costs.
ksv
To:
The II Additional Subordinate Judge
Coimbatore.
[PRV/8841]