N NAGESH Vs. B M POORANACHANDRAN

JUDGEMENT

(1.) According to the petitioner, the respondents herein have filed a suit in O.S.No.41 of 2007 for specific performance and injunction against one N.Balraj and two others herein. During pendency of the suit, third defendant died and hence, the petitioner was brought on record as legal representative of the deceased third defendant. After the death of the first defendant, steps have not been taken to bring on record the legal representatives of the deceased first defendant and therefore the suit stands abated. The court below received memo and recorded the death of the first defendant. Inspite of that no steps were taken by the plaintiffs/respondents and only on 11.8.2016, the respondents filed an application to condone the delay of 426 days in filing the petition to set aside the abatement of the suit in I.A.No.184 of 2016. However, the same was allowed on 21.10.2016. Thereafter, an application in I.A.No.288 of 2016 has been filed by the respondents for setting aside the abatement caused due to the death of the deceased first defendant When CRP No.4504 of 2011 is pending, the respondents have not taken steps to implead the legal representatives of the deceased first defendant. The respondents have filed filed an application in I.A.23 of 2018 under Sec.5 of Limitation Act to condone the delay of 398 days from 10.7.2015 to 11.8.2016 in filing the petition to set aside the abatement. The application was allowed by the court below. Challenging the aforesaid order,the petitioner has preferred CRP No.4507/2017 and the same was allowed and remanded back to the trial court with liberty to the respondents to file an application to condone the delay in filing the application to set aside abatement. According to the petitioners, the respondents have filed an application in IA.No.23 of 2018 to condone the delay of 398 days from 10.7.2015 to 11.8.2016 in filing the set aside the abatement petition. The first respondent expired on 9.2.2015. The respondents have filed petitions in I.A.No.184 of 2016, 288 of 2016 and 224 of 2017 to condone the delay in bringing the legal representatives on record to set aside the abatement and implead the legal representatives and the said applications were allowed by the court below. The petitioner herein preferred C.R.P.No.4507 of 2017 to set aside the order in I.A.No.288 of 2016 on the ground that no application was filed to condone the delay in setting aside the abatement. By order, dated 12.1.2018, this Court allowed C.R.P.No.4507 of 2017 and permitted the respondents to file an application before the court below. The first respondent filed an application before the court below in I.A.No.184 of 2016 to condone the delay of 426 days in filing the petition to set aside the abatement and the same was allowed. Pursuant to the order passed in C.R.P.No.4507 of 2017, dated 12.1.2018, the respondents have filed I.A.No.23 of 2018 to condone the delay of 398 days in filing the set aside the abatement petition and the same was allowed by the court below. Challenging the said order, the 4th defendant has preferred the present Civil revision petition before this Court.

(2.) The learned counsel for the petitioner would submit that the petitioner has filed an objection by stating that delay has not been calculated as per the law. Therefore, the application filed by the respondents is liable to be dismissed. However, the court below erroneously dismissed the application.

(3.) Heard the learned counsel for the petitioner and perused the materials available on record.