Andhra Pradesh High Court - Amravati
Komara Srinivasulu vs Avs Lakshmi on 26 November, 2024
APHC010460822024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3311]
(Special Original Jurisdiction)
TUESDAY, THE TWENTY SIXTH DAY OF NOVEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE MS JUSTICE B S BHANUMATHI
C.R.P Nos.2515, 2516, 2517, 2518, 2519 & 2520/2024
Between:
Komara Srinivasulu ...PETITIONER
AND
Avs Lakshmi and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. C SUBODH
Counsel for the Respondent(S):
1. SIVAPRASAD REDDY VENATI
2.
The Court made the following:
2
BSB, J
C.R.P.No.2515 of 2024 & batch
COMMON ORDER:
All these revisions are filed by the petitioner/petitioner/plaintiff aggrieved by the common order, dated 23.07.2024, dismissing I.A.Nos.762, 763, 764 of 2022; and I.A.Nos.768, 769 and 770 of 2022 in I.A.No.18 of 2021 in O.S.No.681 of 2019 on the file of the Court of the Principal Junior Civil Judge, Nellore.
2. C.R.P.No.2515 of 2024 is filed against the order dismissing I.A.No.762 of 2022; C.R.P.No.2516 of 2024 is filed against the order dismissing I.A.No.763 of 2022; C.R.P.No.2518 of 2024 is filed against the order dismissing I.A.No.764 of 2022; C.R.P.No.2520 of 2024 is filed against the order dismissing I.A.No.768 of 2022 in I.A.No.18 of 2021; C.R.P.No.2519 of 2024 is filed against the order dismissing I.A.No.769 of 2022 in I.A.No.18 of 2021; and C.R.P.No.2517 of 2024 is filed against the order dismissing I.A.No.770 of 2022 in I.A.No.18 of 2021 in O.S.No.681 of 2019.
3. Heard the learned counsel appearing for the parties.
4. The facts, briefly stated, in the affidavits, are as follows:
a. The petitioner/plaintiff is the lawful tenant of the plaint schedule property bearing D.No.16-3-433, Jonnalagaddavari street, Nellore. He filed the suit against the respondents/defendants 1 to 3 seeking 3 BSB, J C.R.P.No.2515 of 2024 & batch permanent injunction restraining the defendants, their men and agents from interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property. On 17.05.2021, 1 st defendant died. On 02.11.2021, the plaintiff came to know about the death of the 1st defendant and filed memo. On the death of the 1 st defendant, her estate was devolved on the 1st respondent/2nd defendant and respondents No.3 to 7 who are her legal heirs. Thus, the respondent Nos.3 to 7 are to be impleaded as defendants No.4 to 8 in the suit. The delay in filing the petitions under Order XXII rule 4 CPC is to be condoned and the abetment caused due to the death of 1st defendant is to be set aside. There are no willful laches in not filing these applications within time.
(i) I.A.No.762 of 2022 is filed under Section 5 of the Limitation Act to condone delay of 404 days in filing an application to set aside the abetment caused due to the death of the deceased 1 st defendant.
(ii) I.A.No.763 of 2022 is filed under Order XXII rule 4 CPC & rule 28 of the Civil Rules of Practice read with Section 151 CPC to implead respondents No.3 to 7/proposed defendants as defendants No.4 to 8 and to carry out the consequential amendments.
(iii) I.A.No.764 of 2022 is filed under Order XXII rule 9 read with Section 151 CPC to set aside the deemed abetment and number the 4 BSB, J C.R.P.No.2515 of 2024 & batch application to bring on record the legal representatives of the deceased 1st defendant.
(iv) I.A.No.768 of 2022 is filed under Section 5 of the Limitation Act to condone the delay of 404 days in filing an application to set aside the abetment caused due to the death of the deceased 1 st respondent in I.A.No.18 of 2021.
(v) I.A.No.769 of 2022 is filed under Order XXII rule 4 CPC & rule 28 of the Civil Rules of Practice read with Section 151 CPC to implead the respondent Nos.3 to 7/proposed respondents as respondents No.4 to 8 and carry out the necessary amendments in the cause title in I.A.No.18 of 2021.
(vi) I.A.No.770 of 2022 is filed under Order XXII rule 9 CPC read with Section 151 CPC to set aside the deemed abetment to set aside the deemed abetment and number the application to bring on record the legal representatives of the deceased 1 st respondent.
b. The 2nd respondent/2nd defendant filed counter stating that respondents 3 to 7 are not necessary parties to the suit as they have nothing to do with the plaint schedule property. The plaint schedule property, along with other property, was settled in favour of the 2 nd respondent/3rd defendant under a registered settlement deed, dated 5 BSB, J C.R.P.No.2515 of 2024 & batch 04.08.2016, by the 1st defendant. The dispute is between the petitioner and the 2nd respondent who are the tenant and the landlord. The petitioner did not pay the rents since 2017 onwards and committed willful default. The cause of action would not survive against the legal heirs of the deceased 1st defendant as the relief of permanent injunction is personal in nature and the suit would come to an end after the death of 1st defendant. The petitions are liable to be dismissed. c. No evidence, either oral or documentary, was adduced on either side.
d. After hearing both parties, the trial Court dismissed the petitions by the impugned common order holding that the present suit is filed by the petitioner/plaintiff for mere injunction and the claim sought is personal in nature and on the death of the 1 st defendant, the plaintiff has no right to sue the legal heirs of the deceased 1st defendant and that there is no averment in the pleadings that respondents No.3 to 7 are trying to interfere with the possession of the petitioner/plaintiff over the plaint schedule property.
5. Hence, these revision petitions are filed by the aggrieved petitioner/plaintiff.
6
BSB, J C.R.P.No.2515 of 2024 & batch
6. The contention of the petitioner is that the legal representatives of the deceased 1st defendant shall be brought on record even in a suit for perpetual injunction, where there is a dispute of title, but the trial Court failed to properly appreciate the same and dismissed the petitions.
7. On the other hand, the learned counsel for the 2 nd respondent/3rd defendant contended that the trial Court rightly dismissed the petition; firstly, because there is no need to bring the legal representatives of the deceased defendant in a suit for perpetual injunction as the cause of action is individual; and furthermore, there is no statement in the affidavit in support of the petition that the proposed parties who are legal representatives of the deceased defendant also interfered with the possession of the petitioner, and therefore, there is no cause of action to bring them on record. It is also submitted that the 3rd defendant alone is claiming title in the property by virtue of the settlement deed executed by the 1st defendant and a written statement to that effect was filed by the 3rd defendant and the same was adopted by the defendants 1 & 2 by filing memo and so, there is no denial of title by the 1st defendant and consequently, the legal representatives of 1st defendant need not be brought on record, whereas, the 3 rd defendant would contest the suit against the plaintiff.
7
BSB, J C.R.P.No.2515 of 2024 & batch
8. Before adverting to the decision on the contentions on both sides, the legal proposition on the issue whether the legal representatives of a defendant who died pending adjudication of a suit for perpetual injunction can be brought on record as decided by this High Court in M.Rama Murthy Vs. A. Chinnappa and others1 is as follows:
"5. In the present case the right in question cannot be said to be personal in nature inasmuch as it is based on a right to defend the alleged possession of the deceased on the date of suit. A right to remain in possession of the immovable property is certainly a right which devolves on the legal representatives of the person just as any other right in the property itself. A possessory right is as much a right which the law recognizes. In any event, even treating it as a personal right, it is not one falling within the limited classes of personal rights which the law extinguishes on the death of a member as provided in Section 306 of the Indian Succession Act. Inasmuch as the right is not one of the accepted categories mentioned in that section, even assuming that the right is personal, the principle of personal actions taking away with this persons is not attracted to the facts of the case."
This decision was followed by the Madras High Court in G. Rani (died) Vs. M.Thiagarajan2.
1 1990(1) APLJ 162 2 C.R.P.No.1075 of 2020 and C.M.P No.5867 of 2020, dt.07.09.2023 8 BSB, J C.R.P.No.2515 of 2024 & batch
9. Though a legal representative of a deceased defendant can be brought on record, as rightly contended by the learned counsel for the 2nd respondent/3rd defendant, title in the disputed property is claimed by the 3rd defendant and defendants 1 & 2 are sailing with the 3rd defendant. Thus, the 1st defendant is merely a proforma party. Moreover, as rightly observed by the trial Court, there is no statement in the affidavit of the petitioner stating that the legal representatives of the deceased 1st defendant are interfering with the possession of the petitioner. Therefore, there is no cause of action as against them. For both these reasons, there is no need to bring the legal representatives of the deceased 1st defendant on record.
10. The suit against the defendants 2 & 3 can be proceeded and abatement of the suit against the 1st defendant has no adverse impact on the relief in the suit against the other defendants, particularly, the 3 rd defendant. At the most, the 1st defendant and in the absence of 1st defendant, the legal representatives of the 1st defendant, may be witnesses required to establish the case of 3rd defendant. Therefore, the proposed parties are not necessary or proper parties anymore. Therefore, there is no illegality or irregularity committed by the trial Court in dismissing the petitions. The impugned common order does not require any interference.
9
BSB, J C.R.P.No.2515 of 2024 & batch
11. Accordingly, the Civil Revision Petitions are dismissed.
There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
___________________ B. S. BHANUMATHI, J 26-11-2024 RAR