P.A. HANUMANTHAIAH Vs. THE TAHSILDAR TUMKUR TALUK

JUDGEMENT

(1.) THE rejection of petitioners I.A. Nos. l to 3 under Order 22, Rule 4 CPC; Section 5 of the Limitation Act; under Order 22, Rule 9 CPC to bring on record the legal representatives of deceased Narasahanumaiah, the 1st respondent by condoning the delay and setting aside the abatement, by order dated 31.5.2004 of the II Addl. District Judge, Tumkur, in Miscellaneous Petition 60/2000 is called in question in this petition.

(2.) PETITIONER instituted Miscellaneous Petition 60 of 2000 under Order 9, Rule 9 CPC to set aside the order dated 28.8.2000 and restore M.A.(VOA) 38/1993 to file. Notice when issued on 10.10.2000, the petition was listed on 14.12.2000, whence a memo was filed by the learned counsel for the 2nd respondent reporting the death of Narasahanumaiah, s/o Lenkappa on 26.11.2000, and the proceeding adjourned to 31.1.2001. Petitioner filed LA. Nos. l to III on 4.9.2001, 7.11.2001 and 29.11.2003 to bring on record the legal representatives of deceased Narasahanumaiah by condoning the delay and setting aside the abatement. In the affidavit accompanying the applications, the deponent stated that he recently came to know of the death of Narasahanumaiah without specifying the date of knowledge or material particulars constituting sufficient cause for not making the application within the prescribed time. The Court below, having noticed absence of acceptable/satisfactory explanation to condone the delay, coupled with the fact that the death of Narashanumaiah was reported to the Court in the memo dated 26.11.2000, declined to accept the explanation and accordingly, by the order impugned, rejected the applications.

(3.) IT is not in dispute that the petitioner is a resident of Pandithanahalli where Narasahanumaiah, since deceased, also did reside. If that is so, then the petitioner cannot feign ignorance of the death of a co -resident of the very same village, since the village is not shown to have a large population. Yet again, since the fact of death of Narasahanumaiah was reported by the learned counsel in the memo filed on 14.12.2000, the least, that the petitioner could have done is to file the applications within 90 days therefrom. In the affidavit accompanying the applications filed on 4.9.2001, 7.11.2001 and 29.11.2003, except for saying that the deponent came to know of the death of Narasahanumaiah "recently , material particulars and dates are wanting.