THANKAM Vs. SREEKUMAR AND TWENTY FOUR

JUDGEMENT

(1.) THIS Civil Revision Petition has been filed against the order of the learned Subordinate Judge, Kuzhithurai dismissing the application filed by the petitioners herein under Section 5 of the Limitation Act seeking condonation of the delay of 2352 days in preferring the appeal against the decree passed in O.S.No.122 of 1979 on the file of the Additional District Munsif, Kuzhithurai.

(2.) THE necessary facts for the disposal of the Civil Revision Petition are as under: THE petitioners were the defendants 22 and 23 in the suit. THE suit was filed by the plaintiffs for partition claiming one half share over the plaint items. In the suit, it was contended by the petitioners" father that the petitioners were necessary parties inasmuch as their mother, who was the 10th defendant in the suit had taken sale deeds in their names and that she was representing them as guardian. THE petitioners were accordingly impleaded as defendants 22 and 23 in the suit. At that time, the petitioners were minors. Notice was sent to their mother, the 10th defendant. As she refused to accept the notice, there was a court guardian appointed. According to the petitioners, the court guardian appointed was one John Issac, but mother counsel by name, Johnson had represented them. It would appear that the court guardian filed a written statement in conformity with the written statement filed by the petitioners" mother as 10th defendant in the suit. THE suit came up for trial and most of the defendants were set ex parte. Evidence was let in on the side of the plaintiffs, documents were marked and a preliminary decree came to be passed on 28.6.1990. In the final decree proceedings, the petitioners were served with notices and at that stage, the petitioners came out with an application stating that they were impleaded in the suit while they were minors, that they had not engaged any counsel, that after the death of their father, they were not recorded as legal heirs, that the fact that they had become majors was not reported to the Court, that the preliminary decree worked great hardship and loss to them and the same had to be set aside. THE application by the petitioners was resisted by the plaintiffs contending that the petitioners had no prima facie case, that they did not raise the contention that they were interested in the suit properties and that in any event, the petition was barred by limitation.

(3.) MR.Sreekumaran Nair, learned counsel for the contesting respondents referred to the commentary by Sarkar on Evidence (Fifteenth Edition, 1999 pg 857) wherein it is stated as follows: