Madras High Court
V.Seeniraj vs Pushpam (Died) on 30 January, 2010
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the Order Date of Pronouncing the Order
25.01.2019 28.01.2019
CORAM:
THE HONOURABLE MR.JUSTICE T.RAVINDRAN
C.R.P.(PD) (MD) No.1308 of 2010
V.Seeniraj ... Petitioner / Petitioner / Plaintiff
-vs-
Pushpam (Died)
1.Paulchamy
2.Kaleeswari
3.Loganayaki
4.Thilagavathi
5.Saratha
6.Krishnamoorthy @ Kannan ... Respondents / Respondents /
Proposed Defendants
PRAYER: Civil revision petition is filed, under Article 227 of the Constitution
of India, to set aside the fair and decretal order passed in I.A.No.691 of 2009
in O.S.No.435 of 2004, dated 30.01.2010, on the file of the District Munsif
Court, Sivakasi.
http://www.judis.nic.in
2
For Petitioner : Mrs.Firdouse Begum
for Mr.D.Nallathambi
For Respondents : Mr.S.Kadarkarai
ORDER
The civil revision petition is directed against the fair and decreetal orders, dated 30.01.2010, passed in I.A.No.691 of 2009 in O.S.No.435 of 2004, on the file of the District Munsif Court, Sivakasi.
2. The suit has been laid by the petitioner / plaintiff for recovery of money based on the mortgage deed against the deceased defendant. It is found that the petitioner / plaintiff had failed to take appropriate steps to implead the legal representatives of the deceased defendant in time and thereby, the delay of 956 days having occurred in preferring the requisite application, to condone the delay, the petitioner / plaintiff has come forward with I.A.No.691 of 2009. According to the petitioner / plaintiff, in respect of another proceeding between the parties, he had already taken appropriate steps to implead the legal representatives of the deceased defendant and he was under the impression that his counsel would have preferred necessary application to bring the legal representatives of the deceased defendant on record, however, only on the change of his counsel, he had come to know about the fact that the legal representatives of the deceased defendant had not http://www.judis.nic.in 3 been brought on record and hence, the delay had occurred and accordingly, sought for the condonation of the delay.
3. The respondents resisted the abovesaid application of the petitioner / plaintiff contending that they are noway connected with the suit proceedings and also challenged the averments made in the application as regards the delay as false and accordingly, prayed for the dismissal of the application.
4. The Court below, on a consideration of the materials placed on record, was pleased to dismiss the application preferred by the petitioner / plaintiff. Impugning the same, the present civil revision petition has been preferred.
5. The suit has been laid by the petitioner / plaintiff for recovery of money based on the mortgage deed against the deceased defendant. It is found that though the defendant is found to have expired, the petitioner / plaintiff has not taken appropriate steps to bring the legal representatives of the deceased defendant on record in time and proceed with the suit as per law, accordingly, the delay of 956 days had occurred in preferring the application with reference to the same and seeking to condone the abovesaid delay, the petitioner / plaintiff had preferred I.A.No.691 of 2009. http://www.judis.nic.in 4
6. The only reason given by the petitioner / plaintiff for the delay is that in the connected proceeding, he had already impleaded the legal representatives of the deceased defendant and thereby, he was under the impression that his erstwhile counsel would have taken appropriate steps with reference to the same and only on the change of his counsel, he had come to know about the fact that the legal representatives of the deceased defendant were not brought on record and thereby, the delay had occurred and hence, prayed for the condonation of the same.
7. The above said reasons given by the petitioner / plaintiff are stoutly challenged by the respondents contending that the same are false and further stated that they are noway connected with the suit proceedings and therefore, sought for the dismissal of the application.
8. As rightly determined by the Court below, considering the delay in bringing the legal representatives of the deceased defendant, the same being huge and inordinate, it is found that the petitioner / plaintiff should have pleaded sufficient cause and placed acceptable and reliable materials with reference to the same for accpeting his case. However, it is seen that the petitioner / plaintiff has simply thrown the blame on his erstwhile counsel http://www.judis.nic.in 5 and accordingly, putforth that thereby, the delay had occurred. However, as rightly determined by the Court below, simply throwing the blame on the erstwhile counsel cannot be considered as a sufficient cause without acceptable material pointing to the same. When there is a duty cast upon the petitioner / plaintiff to brief his Advocate as regards the death of the parties to the suit and accordingly he should have kept in touch with his counsel and thereby, endeavoured to proceed with the matter diligently, and when it is found that despite the death of the defendant, the petitioner / plaintiff had not evinced interest to apprise the same to his counsel to bring the legal representatives of the deceased defendant on record and proceed with the matter diligently, in such view of the matter, when the petitioner / plaintiff has not placed any reason whatsoever for his failure to inform his counsel as regards the death of the defendant and the legal representatives to be brought on record, it is found that the abovesaid failure would amount to gross negligence on the part of the petitioner / plaintiff and consequently he has to bear the consequences of the same. In such view of the matter, when it is found that and as rightly determined by the Court below, the petitioner / plaintiff has only thrown the blame on the erstwhile counsel for the delay and with reference to the same, there is no convincing material to substantiate the same and on the other hand, when it is found that by the condonation of the huge and inordinate delay, the respondents would be put to serious loss and http://www.judis.nic.in 6 T.RAVINDRAN, J.
krk hardship, in such view of the matter, as rightly determined by the Court below, it is found that the petitioner / plaintiff is under the impression that he could prefer the application to bring the legal representatives of the deceased defendant at any time as he deems fit at his whims and fancies and such attitude of the petitioner / plaintiff could not be entertained in any manner and in such view of the matter, I do not find any infirmity in the impugned order of the Court below in dismissing the abovesaid application preferred by the petitioner / plaintiff.
9. For the reasons aforestated, the civil revision petition is dismissed with costs.
28.01.2019
Internet : Yes / No
Index : Yes / No
krk
To:
The District Munsif,
Sivakasi.
ORDER
IN
C.R.P.(PD) (MD) No.1308 of 2010
http://www.judis.nic.in