CHOWDAMMA Vs. THIMMEGOWDA SINCE DEAD

JUDGEMENT

(1.) I have heard the petitioner's learned Advocate in some detail.

(2.) HE commenced his submissions by pointing out that the petitioner was the plaintiff before the Trial Court and that her suit has virtually been dismissed on the ground that the L. Rs. of the deceased defendant had not been brought on record within the prescribed time. The learned Advocate stated that the petitioner is an illiterate agriculturist and that she was wholly unaware of the death of the defendant, but more importantly, of any legal niceties and that to compound matters, she had also fallen ill for a few months. He submits that these aspects of the matter have been totally ignored by the learned trial Judge who has held that the application for condonation of delay is liable to be dismissed because, the Court has recorded the finding that the petitioner-plaintiff was aware of the death of the defendant in January of that year despite which, the application for condonation of delay and bringing on record the L. Rs. has been filed only in September, admittedly well outside the period of limitation. In this background, the learned advocate submitted that the Court must be pleased to exercise its discretion having regard to the status of the petitioner and that the court should interfere with the order of the Trial Court. The additional submission was that if the application for setting aside the abatement had not been made, that since the application for condonation of delay was on record, that the Court should treat the case as though the application for abatement was in fact deemed to have been made and alternatively, the learned Advocate submitted that the omission was a technical one and that therefore, it is within the discretionary powers of this Court to permit the filing of an application for setting aside the abatement even at this point of time.

(3.) IN support of his contentions, the petitioner's learned Advocate relied on two decisions. The first case is Sri Ram prasad v State Bank of Bikaner and Others. In that case, a peculiar position had arisen because, some of the L. Rs. were already on record and even though the officer treated the suit as having abated as against the remaining L. Rs. and an application was made for substituting those L. Rs. who had been left out, the court took the view that an application for abatement was unnecessary as the suit cannot be said to have abated in so far as some of the L. Rs. were already before the Court. Since the proceeding was obviously alive, the Court held that an application for setting aside the abatement was unnecessary. Relying on this decision, petitioner's learned advocate submits that this Court should treat the application for condonation of delay and bringing the L. Rs. on record as one in which there is an implicit prayer for setting aside the abatement and on this ground, interfere with the orders passed by the Trial Court.