Allowed

Raj Kumar v. Mrs.Mary Saroja

Madras HC11 Feb 2014CRP/2545/2013

Case brief

AI extract

What is this about?

The High Court allowed a Civil Revision challenging an order allowing impleadment of legal representatives after the suit had abated. The Court set aside the impugned order as it was passed contrary to law and principles of natural justice due to delays and lack of notice.

What did the court decide?

The impugned order dated 11.1.2012 allowing impleadment under O.22 R.3 Cr.P.C. is set aside and the application is dismissed.

Raj Kumar Vs Mrs.Mary Saroja — Civil Procedure and Limitation | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated:- 11.02.2014

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CORAM

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THE HON’BLE MR. JUSTICE T. MATHIVANAN

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Civil Revision Petition (PD) No. 2545 of 2013

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Rajkumar
S/o. Pushparaj
2. Jayanthi
W/o. Stanly
Both are residing at
No.27,A Sanskrit Apartment,
Santhanalakshmi Street,
Selayur, Tambaram
Rep. by their Power of attorney
Agent T.S.T. Kaznavi
7, Sullivan Street, Santhome,
Chennai-4 … Petitioners/ Defendents
Versus
1. Mrs. Mary Saroja
No.130, Venkatesan Street,
New Anna Nagar,
Thirumullaivoyal,
Chennai – 600 062.
2. Mr. P. Krishnan
S/o. Balarkrishnan
Registered Power of Agent of Mrs. Mary Saroja
No.21, Nannul Street,
Senthil Nagar,
Thirumullaivoyal,
Chennai – 600 062. … Respondents/ Proposed Plaintiffs
2& 3

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Prayer:

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This Civil Revision is filed to set aside the order dated 11.1.2012 and made in I.A. No.942 of 2012 in O.S. No.246/2010 on the file of the learned XVIth Assistant Judge, City Civil Court, Chennai.

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http://www.judis.nic.in

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For petitioners : Mr. M. Balachandar For Respondents : Mr. M.V. Venkatesaeshan for R1 & R2

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ORDER

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Invoking the provisions of Article 227 of the Constitution of India, the

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petitioners, challenging the impugned order dated 11.1.2012 and made in I.A. No.942 of 2012 in O.S. No. 246 of 2010 on the file of the Learned XVI Assistant

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Judge, City Civil Court, Chennai, have come forward with this Civil Revision.

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One M.E. Paulraj (since deceased) had originally filed a suit in O.S. No.246 of

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2010 as against the Revision petitioners/ his defendants seeking the relief of permanent injunction restraining them from interfering with his peaceful position

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and enjoinment over the suit property.

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During the pendency of the suit the original plaintiff M.E. Paulraj had died.

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In consequence thereof, the Respondents 1 & 2 had come forward with an

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application in I.A. No. 942 of 2012 under Order 22 Rule 3 of the Code of Civil Procedure to bring them on record as the legal representatives of the deceased plaintiff M.E. Paulraj. This petition was allowed on 11.1.2012, challenging this order now the Revision Petitioners being the defendants 1 & 2 stand before this court with this Civil Revision.

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Heard Mr. M. Balachandar, Learned Counsel for the petitioner & Mr. M.V. Venkataseshan, Learned Counsel for the Respondents.

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http://www.judis.nic.in

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5.Mr. M. Balachandar has advanced his arguments mainly on the following 4 grounds:

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i) The Revision Petitioners were not having knowledge about the order passed by the Trial Court in the application I.A. No. 942 of 2012. Without order of notice on the petition the Learned Trial Judge had arbitrarily proceeded to allow the petition. The act of the Learned Trial Judge is in total negation of the Principle of Natural Justice.

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ii. The original plaintiff M.E. Pualraj had died on 8.7.2010 and the respondents 1 & 2 had chosen to file the above said application on 5.1.2012 to implead them as plaintiffs 2 & 3 as they being the legal representatives of the deceased plaintiff M.E.Paulraj. Since the application for their impleadment was filed after passing of more than 2 years, the suit was definitely abated. But, without filing an application to condone the delay in filing an application to set aside the order of abatement, and without filing an application to set aside the order of abatement the respondents 1 & 2 had simply come forward with the above said application in I.A. No.942 of 2012 on 5.1.2012 with an abnormal delay.

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iii. Originally the revision petitioners/ defendants were set ex-party and an ex-party decree was passed on 30.3.2012. However, after coming to know about the ex-party decree dated 30.3.2012 the revision petitioners had filed an application I.A. No.10940 of 2012 to set aside the ex-party decree dated 30.3.2012 and said petition was allowed and the ex-party decree was set aside by an order dated 29.4.2012. Without issuing notice to the revision petitioners and with the help of falsified and fake legal heir certificates the respondents had stealthily obtained the order on 11.1.2012 for their impleadment.

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http://www.judis.nic.in

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According to Mr. M. Balachadar, the legal heir certificate obtained by the respondents was a forged one. The 1^st respondent/ proposed 2^nd plaintiff has claimed that she is the wife of the deceased plaintiff M.E. Paulraj.

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A Xerox copy of the legal heir certificate dated 21.9.2010 said to have been obtained by the 1^st respondent has been tagged along with the typed set of papers.

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On perusal of this certificate, it is stated that the 1^st responded Mrs. Saroja, aged 56 is the widow of M.E. Paulraj, who had died on 8.7.2010. But, no where it is stated

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that the 2^nd respondent was also the legal representative of the deceased M.E.

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Paulraj.

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Secondly, it is significant note here that M.E. Paulraj had died on 8.7.2010. The petition in I.A. No. 942 of 2012 for impleadment was filed only on 5.1.2012. By this time the suit itself got abated. But unfortunately without considering this legal

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position the Learned Trial Judge had entertained the application in I.A. No. 942 of

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The application ought to have been rejected at the threshold on the following three grounds:

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i. No steps were taken within the stipulated period of 90 days, to set aside the order of abatement.

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ii. No petition for condoning the delay was filed. iii.No petition to set aside the order of abatement was filed.

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It may be relevant to note here that a written order to dismiss the suit for

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it’s abatement does not require. If no steps were taken to implead the legal

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representatives of the deceased plaintiff or defendant, with in the statutory period

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of 90 days the suit definitely would be presumed to have been dismissed as abated.

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http://www.judis.nic.in Without considering these vital grounds the Trial

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Judge had proceeded to allow the petition in I.A. No. 942 of 2012, which is illegal, erroneous and suffer from infirmity.

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In the result:

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The Civil Revision petition is allowed and the impuned order dated 11.1.2012 and made in I.A. No.942 of 2012 is set aside and the petition in I.A. No. 942 of 2012

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is dismissed. However there shall be no order has to costs.

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11.02.2014
Index: Yes/ No
Internet: Yes/ No.

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http://www.judis.nic.in

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T. MATHIVANAN, J

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Civil Revision Petitions (PD) No. 2545 of 2013
Against
I.A. No. 942 of 2012
in
O.S. No. 246 of 2010
11.02.2014

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http://www.judis.nic.in

Raj Kumar v. Mrs.Mary Saroja

Case brief

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Raj Kumar v. Mrs.Mary Saroja

Case brief

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