Andhra Pradesh High Court - Amravati
Bhoosarapu Subrahmanyam vs Yedlapalli Chinna Kondala Rao on 7 February, 2025
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
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NJS, J
CRP_1906_2024
APHC010368932024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3209]
(Special Original Jurisdiction)
FRIDAY ,THE SEVENTH DAY OF FEBRUARY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE NINALA JAYASURYA
CIVIL REVISION PETITION No:
N 1906 of 2024
Between:
Bhoosarapu Subrahmanyam & Another ...PETITIONER(S)
AND
Yedlapalli Chinna Kondala Rao & Others ...RESPONDENT(S)
Counsel for the Petitioner(S):
1. Mr.Bonthu Venkateswara Rao Counsel for the Respondent Respondents:
1. Mr.T.V.Jaggi Reddy 2 NJS, J CRP_1906_2024 The Court made the following Order:
The present Revision Petition is filed aggrieved by an Order dated 26.02.2024 in I.A.No.346 of 2023 in O.S.No.34 of 2015 on the file of the Court of II Additional District Judge, Amalapuram, whereby, the application filed by the 2nd respondent herein was allowed and he was impleaded as the 2nd plaintiff in the suit.
2. The petitioners herein are defendant Nos.1 and 2 in O.S.No.34 of 2015 filed for cancellation of Possessory Agreements coupled with General Power of Attorney dated 10.12.2014 purported to have been executed by the plaintiff one Mr.Yadlapalli Chinakondalarao and the Sale Deeds dated 17.04.2015 in respect of the plaint schedule property in favour of the defendants 1 & 2 and for consequential permanent injunction restraining them & their men and persons from interfering with the peaceful possession and enjoyment of the plaint schedule property and other reliefs.
3. The plaintiff's eldest son one Mr.Yadlapalli Veera Venkata Satyanarayana, inter alia filed the said suit stating that the plaintiff is an old man of more than 87 years, mentally retarded and is of unsound mind, lost memory power, unable to identify and recollect persons, and as such he is acting, as his next friend and guardian and is looking after his father's / plaintiff's needs and necessities. The petitioners / defendants herein filed their written statement and contesting the suit.
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NJS, J CRP_1906_2024
4. The 2nd respondent herein filed the above said I.A.No.346 of 2023 under Order 22 Rule 10 of Code of Civil Procedure (for short 'C.P.C.') r/w Rule 28 of Civil Rules of Practice seeking his impleadment as 2nd plaintiff. In the affidavit filed in support of the I.A., he inter alia stated that during his life time, his father executed a Registered Will dated 31.05.2010 vide Document No.37/2010, Sub-Registrar Office, Ambajipeta bequeathing the suit schedule property in his favour, that his father died on 31.07.2016 and that by virtue of the Will, the suit schedule property devolved on him, as such he is entitled to continue the suit proceedings. The said application was resisted by the petitioners herein by filing a common counter. They inter alia pleaded that the recitals in the alleged Will dated 31.05.2010 are quite contrary to the averments in the plaint and the affidavit of the next friend of the deceased plaintiff in the suit, that the Xerox copy of the Will may not be taken into consideration and that the application is belated and not maintainable in Law. Several other contentions were also raised in the said common counter.
5. The learned District Judge, after considering the matter at length, allowed the said application, inter alia opining as follows:
40. Admittedly, correctness or otherwise of the registered will dated 31.05.2010, being a pure question of fact which is required to be proved in strict adherence to the relevant provisions of Law of evidence, cannot be assumed or inferred at this juncture in as much as such a task can only be taken up during the course of full pledged trial of the matter alone.
41. Though the registered Will dated 31.05.2010 admittedly was not executed by Kondalarao during pendency of the suit and it was claimed to have been executed around five years prior to filing of the suit, yet interest, if any, of 4 NJS, J CRP_1906_2024 Kondalarao existing in the schedule property shall be and is inferred to have devolved upon the petitioner during pendency of the suit in as much as interest covered by registered will dt.31.05.2010 if proved would come into operation on death of the alleged testator Kondalarao who was admitted by both parties to have died during pendency of the suit."
6. Further, the learned District Judge categorically observed that the recognition of the petitioner therein as 2nd plaintiff as legal representative of his deceased father does not clothe him with any additional right, in as much as his recognition is, subject to proof of the Will dated 31.05.2010, based on the evidence to be adduced during trial.
7. Assailing the said order, the learned counsel for the petitioners made submissions inter alia that the learned Trial Court grossly erred in allowing the I.A., and thereby permitting the 2nd respondent to be impleaded as the 2nd plaintiff. He submits that the father of the 2 nd respondent / plaintiff died on 31.07.2016 and along with the application in question, no petition under Section 5 of the Limitation Act seeking condonation of delay nor any petition to set aside the abatement of the suit under Order 22 Rule 9 of C.P.C., were filed. Without taking note of the said aspect, the learned counsel submits that the Order under challenge was passed and as such the same is liable to be set aside.
8. The learned counsel further sought to impress upon this Court by advancing arguments with reference to the alleged Will dated 31.05.2010, however the same are not germane for consideration of the order under challenge.
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NJS, J CRP_1906_2024
9. On the other hand, the learned counsel for the 2 nd respondent made submissions setting out the circumstances under which, I.A.No.346 of 2023 was filed. He submits that the 2nd respondent, by virtue of the said registered Will dated 31.05.2010, acquired the right and interest in the suit schedule property and entitled to continue the suit proceedings as an interested person. The learned counsel also submits that there is no dispute that the 2 nd respondent herein is the legal heir of the deceased - plaintiff and continuation of the suit proceedings by him in the said capacity apart from person interested by virtue of the Registered Will dated 31.05.2010 would not cause any prejudice to the petitioners in as much as the 2 nd respondent has to prove his case as observed by the learned Trial Court. In support of his contentions, the learned counsel also places reliance on the decision of the Hon'ble Supreme Court reported in Sharadamma v. Mohammed Pyrejan & Others1. He submits that the order under challenge is well considered, contains cogent reasons and calls for no interference as the same does not suffer from illegality or perversity.
10. This Court has considered the submissions made and perused the material on record.
11. On an appreciation of the rival contentions, the point that arises for consideration is Whether the order under challenge warrants interference by this Court, in the facts and circumstances of the case? 1 (2016) 1 SCC 730 6 NJS, J CRP_1906_2024
12. At the outset, it may be appropriate to note that there is no dispute that the 2nd respondent herein is the son of the deceased - plaintiff and one of his legal heirs. The suit was originally filed by the elder son of the deceased - plaintiff representing that he is his next friend and guardian. In the I.A., in question, the 2nd son of the deceased - plaintiff claims that by virtue of a Registered Will dated 31.05.2010 executed by his father / deceased - plaintiff, the suit schedule property devolved on him after the death of his father / plaintiff on 31.07.2016. Though the reasons for not bringing the surviving legal heirs on the death of the deceased - plaintiff or the 2nd respondent on whom the interest devolved by virtue of the alleged Registered Will dated 31.05.2010 on record immediately needs an explanation, the claim of the 2 nd respondent herein on the basis of the said Will cannot be brushed aside at the threshold. As rightly opined by the learned District Judge, whether any rights accrued to the 2nd respondent by virtue of the Registered Will said to have been executed in favour of the 2nd respondent is a matter for enquiry. In the capacity of the person on whom interest was devolved by virtue of the said Will or as a legal heir, the 2nd respondent herein, can continue the suit proceedings.
13. In Sharadamma's case referred to supra, the Hon'ble Supreme Court inter alia opined that on failure of the assignee to file an application to continue the proceedings, the suit cannot be dismissed and it would be open to the assignor to continue the same, notwithstanding the fact that he ceased to have any interest in the subject matter of dispute. Referring to the 7 NJS, J CRP_1906_2024 provisions of Order 22 of C.P.C., and the distinction between Rules 3, 4 and 10 thereof, the Hon'ble Supreme Court inter alia held as follows:
"6..........The legislature while enacting Rules 3,4 and 10 has made a clear-cut distinction. In cases covered by Rules 3 and 4, if right to sue survives and no application for bringing the legal representatives of a deceased party is filed within the time prescribed, there is automatic abatement of the suit and procedure has been prescribed for setting aside abatement Under Rule 9 on the grounds postulated therein. In cases covered by Rule 10, the legislature has not prescribed any such procedure in the event of failure to apply for leave of the court to continue the proceeding by or against the person upon whom interest has devolved during the pendency of a suit which shows that the legislature was conscious of this eventuality and yet has not prescribed that failure would entail dismissal of the suit as it was intended that the proceeding would continue by or against the original party although he ceased to have any interest in the subject of dispute in the event of failure to apply for leave to continue by or against the person upon whom the interest has devolved for bringing him on the record.
7. Under Rule 10 Order 22 of the Code, when there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the court, be continued by or against persons upon whom such interest has devolved and this entitles the person who has acquired an interest in the subject-matter of the litigation by an assignment or creation or devolution of interest pendent lite or suitor or any other person interested, to apply to the court for leave to continue the suit........."
14. In the present case, the 2nd respondent filed I.A., under Order 22 Rule 10, but not under Order 22 Rule 3 of C.P.C. Therefore, the decision referred to above aptly applies to the facts of the case and the contentions that no petition is filed to condone the delay or to set aside the abatement of the suit are not tenable. Therefore, the submissions made on behalf of the petitioners are rejected.
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15. Considering the matter in its entirety, this Court see no reason to interfere with the well considered order, assigning cogent reasons for allowing the I.A. There is no illegality or perversity in the order under challenge warranting exercise of powers under Article 227 of the Constitution of India. The point is accordingly answered against the petitioners.
16. In the result, the Revision Petition is dismissed. No costs. Consequently, the miscellaneous petitions pending, if any, shall stand closed.
_________________ NINALA JAYASURYA, J BLV Dt: 07.02.2025 9 NJS, J CRP_1906_2024 HONOURABLE SRI JUSTICE NINALA JAYASURYA CIVIL REVISION PETITION No.1906 of 2024 Date: 07.02.2025 BLV