MOHANRAJ Vs. VANABADRAKALIAMMAN TEMPLE

JUDGEMENT

(1.) C.R.P.No.1434 of 2006 arises out of the order dated 13.2.2006 passed in I.A.No.754 of 2003 in A.S.No.104 of 1992 and C.M.A.No.2822 of 2006 arises out of the order dated 13.2.2006 passed in I.A.No.245 of 2003 in A.S.No.104 of 1992. Both the orders are passed by the II Additional Subordinate Judge, Coimbatore.

(2.) THE petitioners in C.R.P.No.1434 of 2006 had preferred this revsion petition challenging the order dismissing the application filed to condone the delay in preferring an application to implead the legal representatives for prosecuting I.A.No.245 of 2003 in A.S.No.104 of 1992 on the file of the II Additional Subordinate Judge, Coimbatore.

(3.) IT may be noted, in the case reported in 2004 (5) Ctc 365 (Rudrappa Vs. Shivappa), the Supreme Court held that technical objection should not come in doing full and complete justice between the parties. Consequently, the Apex Court set aside the order passed by the High Court, confirming the order of the Court below to bring on record the legal representatives. Learned senior counsel also referred to the decision of this Court in 1995 (1) CTC 479 (Subramaniam Vs. Perumayee And Another), holding that in the case of an application filed for bringing on record the legal representatives wherein there was a delay, the application filed to bring on record the legal representatives should be construed to contain the prayer for setting aside the abatement and condonation of delay in as much as without condoning the delay and setting aside the abatement, the legal representatives could not be brought on record. This Court held that merely because separate applications were not filed as per the procedure along with the application to bring on record the legal representatives, the Court would not be justified in dismissing the application and that the application must be deemed to have been filed to set aside the abatement to condone the delay. This Court held that such a view would only advance the cause of justice. Learned senior counsel also referred to the decision reported in AIR 1984 Kerala 184 (Kunhikayyumma Vs. Union Of India), wherein, the Kerala High Court held that the procedure under Order 22 ought not to be subjected to narrow construction and hypertechnical interpretation. Learned senior counsel also referred to the decision of the Allahabad High Court reported in AIR 2003 Allahabad 299 (Kamlesh Vs. Tekchand) and submitted that where an applicant files an application for condoning the delay and for bringing on record the legal representatives, the prayer for setting aside the abatement is implicit in the prayer for substitution. A perusal of the judgment shows that the decision of the Kerala High Court reported in AIR 1984 Kerala 184 (Kunhikayyumma Vs. Union Of India), was referred to, to come to the conclusion that in a case where an application is filed to bring on record the legal representatives, the prayer to set aside the abatement should be taken as implicit in the prayer for substitution. In the circumstances, learned senior counsel submitted that the view of the Court below is too hypertechnical and it ought to have seen that given the cause of bringing on record the legal representatives, the proper course for the Court would be to allow the petitioners as the legal representatives to prosecute further the I.A. preferred by the deceased.