REGIMON Vs. MADHAVI

JUDGEMENT

(1.) Addl. defendants 3 and 4 are the revision petitioners. This revision petition arises out of an order passed on I. A. 1477 of 2001 in O. S. 518 of 1998 on the file of Munsiff 's Court, Changanassery. Suit was originally filed against the defendants 1 and 2 for declaration of title and recovery of possession with mesne profits of 48 cents of property in Sy. Nos. 123/14, 128/1 of Trikodithanam Village, Changanassery Taluk. Defendants filed their written statement and the case was posted for trial on 10/04/2001, 19/06/2001, 20/07/2001 and again listed for trial on 3/10/2001. On 14/02/2000 the suit had abated as against first defendant on account of the plaintiff not taking any steps within time to bring the legal representatives of the deceased first defendant on record. No application was also filed for setting aside abatement within time. However, plaintiff preferred a petition on 05/09/2001 under O.1, R.10(2) and S.151 C.P.C. praying to add the revision petitioners herein as additional defendants 3 and 4. Revision petitioners entered appearance on 3/10/2001 and filed objections against their impleadment. Further it was also pointed out that due to the death of first defendant suit was abated. On 27/03/2002 when the case was posted the advocate could not appear. All the same, his junior represented and sought adjournment. Learned Munsiff however, dismissed the request for time and the petition for impleadment was allowed, against which this revision petition has been preferred.

(2.) Counsel appearing for the revision petitioners submitted that the court below has committed an error in allowing the application for impleading the legal representatives of the deceased first defendant without setting aside the abatement. No application for setting aside the abatement was filed by the plaintiff. Further it is also stated that the first defendant died on 14/02/2000 and I.A. for impleadment was filed on 05/09/2001 after a period of 18 months and 21 days. Since the suit itself was abated so far as first defendant is concerned the question of impleadment of the legal representatives of the first defendant does not arise. Counsel appearing for the first respondent however supported the order of the court below stating that there was no justification in seeking adjournment and the court below has rightly allowed the application for impleadment.

(3.) I am of the view that the court below has committed an error in allowing the application for impleadment in a case where no application for setting aside abatement was filed. The consequence of the abatement of the suit against the defendant is that no fresh suit can be brought on the same cause of action. Sub-r.(1) of R.9 bars a fresh suit. The only remedy open to the plaintiff or the person claiming to be the legal representative of the deceased plaintiff is to get the abatement of the suit set aside which can be done only by making an application for that purpose within time. The period of limitation prescribed for making such an application is three months, under Art.177 of the First Schedule to the Limitation Act. There may be cases where the plaintiff may not know of the death of the defendant. Legislature has taken care of that situation also by providing a further period of two months under Art.177 of the Limitation Act. S.5 of the Limitation Act is also made applicable, thereby plaintiff is allowed sufficient time to make an application to set aside the abatement which, if exceeding five months, be considered justified by the court in the proved circumstances of the case.