C P MYTHILI Vs. PRASANNA VENKATESA PERUMAL DEVASTHANAM

JUDGEMENT

(1.) THIS revision is directed against the order passed in i. A. No. 6016 of 1990 in O. S. No. 8648 of 1981 on the file of the Second additional Judge, City Civil Court , Madras . The legal representative of the deceased defendant is the petitioner herein. I. A. No. 6016 of 1990 was filed under Sec. 5 of the Limitation Act to condone the delay of 472 days in filing the application to set aside the order of dismissal for default and to restore the application in I. A. No. 1771 of 1986 in O. S. No. 8648 of 1981. The plaintiff filed O. S. No. 8648 of 1981, against the deceased kothai Ammal for ejectment from the suit property. The tenant filed an application under Sec. 9 of the City Tenants Protection Act and the same was allowed and a Commissioner was appointed to fix up the market value of the suit property and also to fix the extent required for the convenient enjoyment of the deceased defendant. I. A. No. 1771 of 1986 came up for filing of the commissioner's report on 10. 4. 1988. In the meanwhile, the defendant kothai Ammal died on 11. 5. 1988. The deceased defendant had executed a will dated 23. 1. 1980 which was also registered. The petitioner herein is the sole legatee under the will. Hence, the petitioner filed a petition for grant of Letters of Administration with the will annexed in O. P. No. 78 of 1989 on the file of the High Court, Madras and the same was ordered on 22. 6. 1989. Copy Application no. 3358 of 1989 was filed on 27. 6. 1989 and the copy of the order was delivered on 27. 11. 1989. Immediately the petitioner filed an application to implead herself as the proposed legal representative of the deceased defendant/ petitioner Kothai Ammal. There was delay in filing the application to set aside the order of dismissal of application in LA. No. 1772 of 1986. The said delay was occasioned on account of obtaining probate in the High Court. It was therefore prayed the petitioner should be permitted to be impleaded as the legal representative of Kothai Ammal and the delay in filing the application to set aside the order of dismissal for default of the application in I. A. No. 1771 of 1986 should be condoned.

(2.) THE Devasthanam- plaintiff filed a counter-affidavit stating that Kothai Ammal filed the application under Sec. 9 of the City Tenants protection Act. A Commissioner was appointed. THE Commissioner filed his report. Since there was no representation on behalf of the tenant, the application was dismissed on 10. 11. 1988. No steps were taken to bring the legal representative on record. THE applicant has never informed the death of Kothai ammal on 11. 5. 1988. THE applicant has no right to claim as a legal representative. THE Devasthanam does not know the proceedings in O. P. No. 78 of 1989. THEre is a delay of 472 days in filing the application to set aside the dismissal order. THE present applicant is not a legal heir to the said Kothai ammal. As a third party she is not entitled to file this application. THErefore it was pleaded that the application should be dismissed.

(3.) IN the result, the revision is dismissed. No costs. Consequently, no order is necessary in C. M. P. No. 8912 of 1992. .