{"id":166092,"date":"2006-01-18T00:00:00","date_gmt":"2006-01-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/velayutham-vs-venugopal-on-18-january-2006"},"modified":"2018-01-16T05:30:13","modified_gmt":"2018-01-16T00:00:13","slug":"velayutham-vs-venugopal-on-18-january-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/velayutham-vs-venugopal-on-18-january-2006","title":{"rendered":"Velayutham vs Venugopal on 18 January, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
Velayutham vs Venugopal on 18 January, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n In the High Court of Judicature at Madras\n\nDated: 18\/01\/2006 \n\nCoram \n\nThe Honourable Mr.Justice S.R.SINGHARAVELU      \n\nCRP.(PD) No. 2006 of 2004  \nAnd \nC.M.P.No.19223 of 2004 and V.C.M.P.No.7589 of 2005   \n\n\nVelayutham S\/o Somasundaram    \n22F, Rajambal Nagar, \nManjjakuppam,  \nCuddalore.             ...  17th Respondent\/\n                             proposed 17th defendant\/\n                             Revision Petitioner.\n\n-Vs-\n\n1.Venugopal, S\/o Adhimoolam,  \nKoothapakkam,  \nThirupapuliyur,\nCuddalore.              ... Petitioner\/Plaintiff\/\n        1st Respondent.\n2.The Collector,\nSouth Arcot District\nCuddalore.\n\n3.The Settlement Tahsildar,\nTanjore.\n\n4.Pandian S\/o Dhandapani Chettiar \n\n5.Sankar, S\/o Dhandapani Chettiar \n\n6.Balachandra Chettiar\nS\/o Dhandapani Chettiar \n\n7.Arumugham, S\/o Ramaswamy Padayachi      \n\n8.Thirunavukarasu, S\/o Palanipillai\n\n9.Manickam, S\/o Palanipillai\n\n10.Sankaralingam, S\/o Palanipillai\n11.Shanmugham, S\/o Palanipillai \n\n12.Chandran @ Sankaran,  S\/o Subramanian.   \n\n13.Sasikumar, S\/o Subramanian.   ... Respondents 1 to 5,9,11 to 16\/\n                                Defendants  1 to 5,9,11 to 16\/Respondents\n\n        Civil Revision Petition under Article 227 of the Constitution of India\nagainst the order dated 10.01.2004 passed in I.A No.142 of 2002 in  O.S.No.264\nof 2001 on the file of the Principal Subordinate Judge, Cuddalore.\n\n!For Petitioner :  Mr.R.Sunilkumar for\n                M\/s Usha Ramanan\n\n^For Respondents :  Mr.Dr.G.Krishnamurthi \n                for R1.\n                No appearance for R2 to 13.\n\n:ORDER  \n<\/pre>\n
        This Civil Revision is preferred by the proposed 17th Defendant in the
\nsuit who was impleaded as Legal Representative of the deceased 10 th Defendant
\nby name Somasundaram and who died on 10.10.1993.\n<\/p>\n
        2.   The first Respondent\/Plaintiff has filed O.P.No.17 of 1989 on the
\nfile of the Sub-Court, Cuddalore, seeking to declare him as an informa pauper,
\ndeclaration of his  title  to  nine  items  of  suit  properties  situated  in
\nKoothapakkam  Village,  Cuddalore  Taluk and for recovery of possession on the
\nground that the  District  Revenue  Officials  arrayed  as  first  and  second
\nDefendants  were  influenced  by the Defendants 3 to 6, engulfing his property
\nunlawfully under the guise of patta proceedings and  also  in  collusion  with
\ndefendants 7 and 9.  In the Original Petition, it was further alleged that the
\ndeceased  10th  Defendant Somasundaram had also purchased one specific portion
\nof the suit property as per a sale deed  dated  26.6.1980.    Among  9  items,
\nsubject  matter  of  suit,  the allegation against the deceased 10th Defendant
\nwhose Legal Representative was arrayed as Revision  Petitioner,  is  that  one
\nspecific  portion  of  the  subject  matter  of the suit was acquired by 10 th
\nDefendant under the guise of a sale deed dated 26.6.1980.  Unfortunately,  the
\nOriginal  Petition  has  not been drafted in such a way to include a prayer to
\nset aside the said sale.  However, delivery  of  possession  was  required  in
\nrespect of  all  suit  items.  Since that Original Petition regarding indigent
\nissue was dismissed on 18.9.1992,  the  first  Respondent\/Plaintiff  preferred
\nappeal before this Court in C.M.A.  No.1313 of 1993.\n<\/p>\n
        3.   A  poor  man  who  could not pay Court Fees although he filed the
\nOriginal Petition before the Sub-Court, Cuddalore in the year 1989,  was  able
\nto  succeed in treating him as informa pauper, only on 16.3.2001, by virtue of
\nthe order of this Court in C.M.A.No.1313 of 1993.  It is thereafter, the O.P.,
\nwas converted into suit in O.S.No.264 of 200  1  on  the  file  of  Sub-Court,
\nCuddalore, where the first Respondent\/ the sole plaintiff filed an application
\nin  February,  2002 in I.A.No.142 of 2002, to implead this Revision Petitioner
\nas Legal Representative of the deceased 10th Defendant  Somasundaram,  on  the
\nground that he had knowledge of death of the 10th Defendant only on 4.12.2001.
\nTrue, it is that there was no petition to set aside the abatement filed by the
\nplaintiff in  the  trial  Court.    But  considering  the  fact  that  similar
\napplication in I.A.No.543 of 2002 was allowed on 4.6.2003 in getting impleaded
\nthe Defendants 18 to 21 as Legal Representatives of the deceased 6th Defendant
\nand also by considering the fact that the  said  application  to  implead  the
\nLegal  Representative  of  10th  Defendant was within 90 days from the date of
\nknowledge of death, the Trial  Court  had  entertained  that  application  and
\nallowed the same, which is the order agitated here.\n<\/p>\n
        4.   True,  it is that Article 120 of the Limitation Act provides that
\nthe time for preferring application to implead the  Legal  Representatives  of
\ndeceased\/defendant  is  90 days from the actual date of death and not from the
\ndate of information of such death to the plaintiff.  In this  case,  the  10th
\nDefendant Somasundaram  died on 10.10.1993.  Since no steps have been taken to
\nimplead the Legal Representatives of the deceased  within  90  days  from  the
\nactual date of death, as contemplated under Article 120 of the Limitation Act,
\nthe suit against the 10 th Defendant gets abated automatically.\n<\/p>\n
        5.   According  to  the  learned  counsel for the Revision Petitioner,
\nwithout filing an application to set aside the abatement  caused  against  the
\n10th Defendant, and without even filing an application for condoning the delay
\nin  filing  the  application  to  implead the Legal Representative of the 10th
\nDefendant, the impugned order passed by the trial Court is erroneous.\n<\/p>\n
        6.  In this connection, reliance was placed by the Revision Petitioner
\nin a case law reported in Union of India v.  Ram Charan  (AIR<\/a>  1964  SC  215),
\nwhich referred to an earlier decision of a Full Bench of Punjab High Court, in
\nFirm Dittu Ram Eyedan  v.    Om Press Co.  Ltd., (AIR 19 60 Punj 335).  In the
\nabove cited Ram Charan’s case (supra), there was a money decree passed against
\nthe Union of India on 6.1.1955 at the instance of plaintiff  Ram  Charan,  who
\ndied on  21.7.1957.  In the appeal preferred by Union of India before the High
\nCourt of Punjab, an application to implead the Legal  Representatives  of  the
\ndeceased  Ram  Charan  was  filed on 18.3.1958 with an affidavit to the effect
\nthat they had knowledge of the death of Ram Charan only on  3.2.1958.    Among
\nthe  two  legal heirs proposed in the application filed by the Union of India,
\none was the widow and the other was the adopted son of  deceased  Ram  Charan.
\nThe  widow  contended  that  she  alone  was  the  Legal Representative of the
\ndeceased Ram Charan, based upon a Will in her favour.  Therefore,  she  wanted
\nto take up the question of abatement as a preliminary point.  The appeal filed
\nby the  Union  of India was dismissed as abated.  A Special Leave Petition was
\npreferred by the Union of India, before the Supreme Court, where it  was  held
\nthat  as  the  defendant  not  even  mentioned  the  fact  of abatement in the
\naffidavit  filed  in  support  of  the  application  to  implead   the   Legal
\nRepresentatives of the deceased, the same cannot be entertained.\n<\/p>\n
        7.   The  above  said  decision of the High Court of Punjab, which was
\nconfirmed by the Supreme Court in (AIR 1964 SC 215)(supra), relied on the Full
\nBench of Pubjab High Court, reported in Firm Dittu Ram Eyedan v.  Om Press Co.
\nLtd., (AIR 1960 Punj 335), which held that ignorance of the death  was  not  a
\nsufficient cause for setting aside the abatement, when an application to bring
\nthe  Legal  Representatives  of the deceased on the record, was made after the
\nexpiry of the period of limitation, as the law imposed an  obligation  on  the
\nperson  applying for bringing the Legal Representatives of the deceased on the
\nrecord and he had, therefore, to show absence of want of care.\n<\/p>\n
        8.  As against which before the Supreme Court the appellant\/ defendant
\nviz., the Union of India in the case of Ram Charan raised the point  that  the
\nHigh  Court itself has got inherent power to implead the legal representatives
\nof the deceased to do full justice to the party.  It was held that  there  was
\nno  force  in that contention and that the Court is not to invoke its inherent
\npowers under Section 151 C.P.C., for  the  purpose  of  impleading  the  legal
\nrepresentatives  of the deceased respondent, if the suit had abated on account
\nof the appellant in not taking appropriate steps  within  time  to  bring  the
\nlegal  representatives  of  the  deceased  party  on  the record, and when its
\napplication for setting aside the abatement is not allowed on account  of  its
\nfailure  to  satisfy  the Court that there was sufficient cause for not filing
\nthe application for impleading the legal representatives of  the  deceased  in
\ntime and for not applying for the setting aside of the abatement within time.\n<\/p>\n
        9.   For  the  next contention raised by the Union of India before the
\nSupreme Court in the  above  said  Ram  Charan’s  case,  that  the  expression
\n“sufficient  cause”  should  be  liberally  considered in order to advance the
\ncause of justice, it was held that the provisions of the Code are with a  view
\nto advance cause of justice.  Of course, the Court, in considering whether the
\nappellant  has established sufficient cause for his not continuing the suit in
\ntime or for not applying for the setting aside of the abatement  within  time,
\nneed  not  be over-strict in expecting such proof of the suggested cause as it
\nwould accept for holding certain fact established, both because  the  question
\ndoes  not  relate to the merits of the dispute between the parties and because
\nif the abatement is set aside, the merits of the  dispute  can  be  determined
\nwhile,  if  the  abatement  is not set aside, the appellant is deprived of his
\nproving his claim on account of his culpable negligence or lack of  vigilance.
\nThis, however, does not mean that the Court should readily accept whatever the
\nappellant alleges  to  explain  away his default.  It has to scrutinize it and
\nwould be fully justified in considering the merits  of  the  evidence  led  to
\nestablish  the  cause  for the appellant’s default in applying within time for
\nthe impleading of the legal representatives of the  deceased  or  for  setting
\naside the abatement.\n<\/p>\n
        10.   Even  in  the  case reported in AIR 1960 Punjab 335 (FB) (supra)
\nwhich was relied on in the above said Ram Charan’s  case,  the  following  was
\nobserved:-\n<\/p>\n
“The  above  is  a representative, though not an exhaustive review of the case
\nlaw expressing somewhat divergent views.  On the one  side  through  the  wide
\ngamut of  judicial  decisions  three  currents  are  noticeable.  There is the
\nextreme view which is to the effect that through  lapse  of  time  a  valuable
\nright  is  secured  and  it  should  not  be extended in the absence of strong
\ngrounds and the burden lies heavily upon the  person  seeking  indulgence,  of
\nshowing   sufficient   cause   justifying   delay   in   bringing   the  legal
\nrepresentatives on the record within the period  prescribed.    On  the  other
\nextreme  is  the  view expressed in decisions of Patna, Madras and Nagpur High
\nCourts that after notice has been served on the respondent,  appellant’s  duty
\ncomes  to  an  end  and he is not bound to inquire as to whether respondent is
\ndead or alive.  Neither of these views appears to be justified.\n<\/p>\n
        Law casts a duty upon the plaintiff or the appellant, as the case  may
\nbe,  to  bring the legal representatives of the deceased on the record, lest a
\ndecree should be obtained against a dead person which is of no  legal  effect.
\nThe  duty  cannot  be  deemed  to  be  discharged once notice is served on the
\nrespondent.  A suit or appeal abates automatically  after  the  expiration  of
\nninety days of the death of the deceased defendant or respondent.\n<\/p>\n
        Under  common law a right of action is said to “abate” on the death of
\na defendant, it does not simply mean  its  suspension  or  discontinuance,  it
\nmeans an  extinguishment  of  the  very  right of action itself.  The right of
\nprosecuting the suit is effectually wiped out as  if  it  had  never  existed.
\nWhen a  suit abates, it ceases, terminates or comes to an end prematurely.  In
\nthe common law sense, therefore, when a suit abates it is absolutely dead  but
\nin  equity a suit when abated was merely in a state of suspended animation and
\nmight be revived.\n<\/p>\n
        …  If the applicant satisfies the Court that there was  no  want  of
\ndiligence  on  his  part,  that  he acted in good faith and not in a negligent
\nmanner, his inaction may not be visited with grave  consequences.    In  other
\nwords, it is for him to allege and prove not only that he remained ignorant of
\nthe  death  of the deceased and thus could not bring his legal representatives
\non the record, but further to show that his ignorance could not be  attributed
\nto absence of negligence or want of sufficient vigilance.”\n<\/p>\n
        11.   In  the  above  cited  case  in  order  to  avoid  remand it was
\nconsidered whether there was sufficient evidence or  circumstances  indicating
\nsufficient cause  for  condoning  the delay.  By taking note of the conditions
\nresulting from the partition of the country were exceptional,  as  very  large
\nsections  of  population  on both sides of the frontier were forced to migrate
\nunder unusual and unprecedented circumstances and it  was  humanly  impossible
\nfor  the  plaintiffs  in  that case to keep trace of the defendants who had no
\nsettled abode, and were scattered all over the country without there being any
\nclue or information of their whereabouts.    Therefore  considering  that  the
\nplaintiffs’  conduct  in  that  case  could  not  be  blameworthy or negligent
\nabatement was set aside.  The Sub-Judge, was directed to proceed with the case
\nafter bringing the legal  representatives  of  the  deceased  parties  on  the
\nrecord.\n<\/p>\n
        12.  As the law laid down in AILR l960 (FB) Punjab 35 got confirmed by
\nthe  Supreme  Court  in  Ram  Charan’s  case  (supra),  the earlier verdict in
\nSecretary of State v.  Vinjamuri Kistnamacharyalu (AIR  1938  Madras  218)(DB)
\nand in  Ramalingam  v.   Koteswara Roa (AIR<\/a> 1949 Madras 624)that the fact that
\nthe applicant seeking to set aside the abatement was not aware of the death of
\nthe  party  whose  legal  representatives  have  to  be  brought  on   record,
\nconstituted  a  sufficient  cause,  for condoning the delay, in seeking to set
\naside the abatement is no more good law.  This is the effect of the verdict of
\nthe Supreme Court in Ram Charan’s case, and that Supreme Court’s verdict  only
\ncountenanced  the  Full  Bench  judgment of the Punjab High Court in (AIR 1960
\nPunj 335), wherein it was held that “a party who  has  obliged  to  apply  for
\nimpleading legal representatives of the deceased opponent to allege and prove,
\nnot only that he remained ignorant of the death of the deceased, but also that
\nhis  ignorance  could  not  be  attributed  to absence of negligence or one of
\nsufficient vigilance on his part.”\n<\/p>\n
        13.  Now coming to the facts of the case even during the  pendency  of
\nC.M.A.No.1313 of 1993 before this Court, the endeavour to serve notice on 10th
\nRespondent  (Somasundaram)  failed  only  on the view expressed by the process
\nwing of the Court that the said Somasundaram died.  Even then there  was  lack
\nof diligence on the part of this 1st Respondent\/sole Plaintiff to take further
\nsteps in impleading  L.Rs.    In  the C.M.A.  Itself which was pending in this
\nHigh Court.  Thus, there was an opportunity for him to know the death  of  the
\n10th defendant even during the C.M.A.  Proceedings.  No diligence was shown by
\nthe   first   Respondent\/the  sole  plaintiff  either  to  implead  the  legal
\nrepresentatives or even later on to file  an  application  to  set  aside  the
\nabatement and to file an application under Section 5 of the Limitation Act for
\ncondoning  the  delay  in  filing  an  application to set aside the abatement.
\nTherefore, the first respondent\/plaintiff cannot maintain the suit against the
\ndeceased 10th defendant as the suit already got abated.\n<\/p>\n
        14.  However, the first respondent\/plaintiff is a poor man  who  filed
\nthe  pauper O.P., as early as in the year 1989 and was declared pauper by this
\nCourt in 2001 and was able to get his O.P., converted into suit  only  in  the
\nyear 2001.    His  grievance  also  was  that  with  the  influence of Revenue
\nOfficials, his lands were taken away by influential defendants.  So far as the
\nspecific portion of land in the subject matter  of  suit  taken  away  by  the
\ndeceased  10th  defendant, even though his suit against the 10th defendant got
\nabated, in all fairness and in the interest of justice, he shall  have  to  be
\npermitted  to  proceed  against  the  remaining defendants regarding the other
\nproperties.  Negation of  such  rights  on  the  face  of  its  allegation  of
\noppression  with  influence  upon individuals in power, and that too, after 14
\nlong years  of  fight  to  get  him  declared  even  as  indigent,  may  cause
\nmiscarriage of justice.\n<\/p>\n
        15.   This  situation  is fortified in a case law reported in State of
\nPunjab v.  Nathuram (AIR 1962 SC 89).  In that case it was held  that  ‘  when
\nthere was no abatement of the appeal against the co-respondent of the deceased
\nrespondent,  there  can  be  no  question of abatement of appeal against them,
\nregarding which the following observation was made:-\n<\/p>\n
“The question whether a court can deal with such matters or not,  will  depend
\non  the  facts  of each case and therefore no exhaustive statement can be made
\nabout the circumstances when this is possible or is not  possible.    It  may,
\nhowever,  be  stated  that  ordinarily the considerations which weigh with the
\nCourt in deciding upon this  question  are  whether  the  appeal  between  the
\nappellants  and  the  respondents  other  than  the deceased can be said to be
\nproperly constituted or can be said to have all the necessary parties for  the
\ndecision of  the controversy before the Court.  The test to determine this has
\nbeen described in diverse forms.  Courts will not proceed with an  appeal  (a)
\nwhen  the  success  of the appeal may lead to the court’s coming to a decision
\nwhich will be in conflict with the decision  between  the  appellant  and  the
\ndeceased  respondent  and  therefore which would lead to the court’s passing a
\ndecree which will be contradictory to the decree which had become  final  with
\nrespect  to  the  same  subject-matter  between the appellant and the deceased
\nrespondent; (b) when the appellant could not have brought the action  for  the
\nnecessary  reliefs  against  those  respondents alone who are still before the
\ncourt and 8 when the decree against the surviving respondents, if  the  appeal
\nsucceeds,  will  be  ineffective, that is to say, it could not be successfully
\nexecuted.”\n<\/p>\n
        16.  Even though the facts of the case did not allow the  suit  to  be
\ncontinued  against the co-defendants the principle was very much laid down, as
\nabove, which was later on referred in Punjab State v.  Kabul Singh and  others
\n(AIR 1968 Punjab and Haryana 340).\n<\/p>\n
        17.   Thus,  this  Civil Revision Petition is allowed in so far as the
\ndeceased  10th  defendant  Somasundaram  and  his  legal  representative,  the
\nRevision petitioner  is  concerned.    In other respects the suit may continue
\nagainst other co-defendants.  The order dated 10.01.2004 passed in I.A  No.142
\nof  2002 in O.S.No.264 of 2001 on the file of the Principal Subordinate Judge,
\nCuddalore is set aside.  No costs.  Consequently, C.M.P.No.19223 of  2004  and
\nV.C.M.P.No.7589 of  2005  are  closed.  The trial Judge is directed to dispose
\nthe case before the end of 2006, without requiring any further time, which may
\nonly be considered in extraordinary circumstances.\n<\/p>\n
Index:Yes
\nInternet:Yes<\/p>\n
gr.\n<\/p>\n
To
\nThe Principal Subordinate Judge, Cuddalore.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Velayutham vs Venugopal on 18 January, 2006 In the High Court of Judicature at Madras Dated: 18\/01\/2006 Coram The Honourable Mr.Justice S.R.SINGHARAVELU CRP.(PD) No. 2006 of 2004 And C.M.P.No.19223 of 2004 and V.C.M.P.No.7589 of 2005 Velayutham S\/o Somasundaram 22F, Rajambal Nagar, Manjjakuppam, Cuddalore. … 17th Respondent\/ proposed 17th defendant\/ Revision Petitioner. -Vs- […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-166092","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nVelayutham vs Venugopal on 18 January, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/velayutham-vs-venugopal-on-18-january-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Velayutham vs Venugopal on 18 January, 2006 - 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