IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 18.02.2010
CORAM
THE HONOURABLE MR. JUSTICE M.M.SUNDRESH
C.R.P.(NPD) NO.1178 OF 2003
1.Thanappa Diagou
2.Thamayandi .. Petitioners
versus
1.Jaganou Thiagou
2.Josphine Yuonne Ketty Amaly
3.Josephine Tavamarie Pirabha
4.Marie Anna Dayavady
5.Marie Antoinetto Thangavady
6.Antoinetto Samuel Gnanou Diagou .. Respondents
This Civil Revision Petition is filed under Section 115 of the Civil Procedure Code, against the Judgment and Decree in I.A.No.1580 of 2001 in O.S.No.154 of 1989 dated 11.02.2003 on the file of Additional Sub Judge, Pondicherry.
For Petitioners : Mr.R.Subramanian
For Respondents : M/s.Srinath Sridevan
* * * * *
O R D E R
The Civil Revision Petition has been filed challenging the order passed in I.A.No.1580 of 2001 in O.S.No.154 of 1989 on the file of Additional Sub-Court, Pondicherry, dismissing the application filed under Section 5 of the Indian Limitation Act, seeking to condone the delay of 1711 days.
2.The petitioners being the plaintiffs in the suit which was filed for partition and separate possession and had filed an application earlier seeking to amend the plaint. The said application was dismissed by the Court below and being aggrieved against the same, a revision was filed before this Hon’ble Court in C.R.P. The said revision was also dismissed as early as on 18.12.1997. The revision petition was dismissed by this Hon’ble Court, since the learned counsel appearing for the petitioner was not able to take appropriate steps to bring on record the legal representatives of the deceased/first respondent. It has been specifically stated in the said order that the learned counsel appearing for the petitioner had submitted that he was not able to get the particulars about the legal representatives of the first respondent as the petitioners were living outside the country.
3.It is seen from the records that the present application was filed on 20.06.2001 which was more than 21/2 years after the orders passed by this Hon’ble Court in the earlier revision petition. The petitioner has stated in his affidavit filed in support of the petition to condone the delay of 1711 days that the entire papers were sent to the counsel at Chennai for preparing the writ petition. In order to support the said contention, no particulars have been produced by the petitioners. A counter affidavit has been filed by the respondents stating that there was no writ petition pending between the parties but only the revision was preferred by the petitioners which was also dismissed as early as on 18.12.1997.
4.Therefore this Court is of the opinion that considering the fact that the petitioners were aware of the death of the first respondent and they have not taken any steps, the Court below has rightly rejected the application filed by the petitioners. This Court also is of the opinion that there was no bonafide reasons in the applications and the reasons assigned in the affidavit filed in support of the application to condone the delay of 1711 days are not true and genuine.
5.The learned counsel appearing for the petitioners has relied upon the judgment of the Hon’ble Apex Court reported in (2002) 3 SCC 195 [RAM NATH SAO v. GOBARDHAN SAO] and submitted that the liberal approach will have to be made by the Court while interpreting the sufficient cause for condoning the delay in filing the application to set aside the abatement and to bring on record of the deceased parties. This Court is of the opinion that the judgment of the learned counsel is not applicable to the present case on hand, since the Hon’ble Supreme Court was considering the case of an illiterate person who was not properly advised to file an application within time. Further the Hon’ble Supreme Court has observed that the question of sufficiency of the cause will have to be decided on the facts of each case.
6.It is also seen that the suit filed by the petitioners was also dismissed as early as on 04.04.2003. Considering the facts involved in the present case and also considering the fact that the suit was filed as early as on 20.07.1989, this Court is of the opinion that the revision is liable to be dismissed and accordingly, the same is dismissed. There is no order as to costs.
18.02.2010
Index : Yes
Internet : Yes
sri
M.M.SUNDRESH, J.
sri
To
The Additional Sub Judge, Pondicherry.
C.R.P.(NPD) NO.1178 OF 2003
18.02.2010