Karnataka High Court
Smt. Siddamma vs Sri. Syed Samiulla on 29 September, 2016
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF SEPTEMBER, 2016
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
CIVIL REVISION PETITION No.629/2015
BETWEEN:
SMT. SIDDAMMA,
W/O G. GOVINDAIAH,
SINCE DECEASED BY
LEGAL REPRESENTATIVE
SMT. CHANDRAKALA
W/O LATE CHANDRAMOHAN B.P.,
AGED ABOUT 51 YEARS, AT NO.93,
1ST 'A' MAIN, 2ND CROSS, 5TH BLOCK,
3RD STAGE, 3RD PHASE, BANASHANKARI,
BANGALORE-560085
... PETITIONER
(BY SRI D.R. RAVISHANKAR, ADVOCATE)
AND:
1. SRI. SYED SAMIULLA,
SON OF SRI. MEER DASTAGIR,
AGED ABOUT 62 YEARS,
RESIDING AT NO.35, 6TH PHASE,
1ST STAGE, 1ST MAIN ROAD,
WEST OF CHORD ROAD,
BANGALORE-44.
CARRYING ON BUSINESS
AT: SHOP NOS. 16/2 & 3
SITUATED AT #35, 6TH PHASE,
1ST STAGE, 1ST MAIN ROAD,
WEST OF CHORD ROAD,
BANGALORE-44.
2
2. UMESH GOWDA,
AGED ABOUT 45 YEARS,
SON OF LATE KEMPAIAH,
NO.18, SUNKADAKATTE MAIN ROAD,
BBMP WARD NO.72, BANGALORE-60
... RESPONDENTS
(VIDE ORDER DATED 1/9/2016 NOTICE TO R1 & R2 SERVED
THROUGH PAPER PUBLICATION AND UN REPRESENTED )
......
THIS CRP FILED UNDER SECTION 18 OF THE SMALL
CAUSES COURT ACT., AGAINST THE ORDER DATED 6.11.2015
ON IA NO.S. 17. 18 & 19 IN SC.234/2011 ON THE FILE OF THE
I/C XVIII ADDL. JUDGE COURT OF SMALL CAUSES AND
PRESIDING OFFICER IX ADDL. SMALL CAUSES JUDGE & XXXIV
ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7,
BENGALURU, REJECTING THE IA NO.XVII FILED U/O XXII
RULE 3 OF CPC, REJECTING THE IA NO. XVIII FILED UNDER
SEC.151 OF CPC, AND REJECTING THE IA NO.XIX FILED U/O
XX RULE 9(2) OF THE CPC.
THIS CRP COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This is a plaintiff's Civil Revision Petition against the order dated 06.11.2015 on I.A.Nos.17 to 22 made in S.C.No. 2344/2011, on the file of the XVIII Addl. Judge, Court of Small Causes and Presiding Officer, IX Addl. Small Causes Judge and XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bengaluru, rejecting the 3 applications for coming on record as the legal representative of deceased plaintiff filed by one Chandrakala/petitioner herein and one Umesh Gowda/ 2nd respondent and ultimately dismissing the suit against the defendant as abated.
2. The original plaintiff filed O.S.No.16857/2002 against the defendant/1st respondent for ejectment, before the City Civil Judge, Bangaluru. The suit was contensted. Thereafter, suit was transferred from the Court of City Civil Judge, Bengaluru to the Court of Small Causes, Mayo Hall Unit, Bengaluru, on 06.08.2011 and the same was numbered as SC 2344/2011. During pendency of the suit, the original plaintiff Siddamma died. The petitioner herein/ Smt. Chandrakala said to be the legal representative of Siddamma filed one set of applications under Order XXII Rule 3, Order XXII Rule 9(2) of the Code of Civil Procedure and Section 5 of the Limitation Act and the 4 2nd respondent herein also filed another set of applications under the provisions stated supra, claiming to be the legal representative of deceased Siddamma/ the original plaintiff. The defendant/1st respondent filed objections to the said applications.
3. The Trial Court considering the said applications, has proceeded to reject the applications on the ground that there are rival claimants claiming to be the legal representatives of deceased Siddamma/sole plaintiff and since there is dispute in respect of the title over the suit schedule property between the present proposed parties, the applications filed by both the proposed parties do not survive for consideration at all and that the remedy available to the proposed parties is to agitate their right, title and interest over the suit schedule property which belong to the sole plaintiff, before the competent Court of law having original jurisdiction. Hence, the present Civil Revision Petition is filed by the 5 petitioner, claiming to be the daughter of deceased Siddamma/ sole plaintiff.
4. The 2nd respondent herein/Umesh Gowda, though his applications are rejected, has not filed any Revision Petition. The respondents in this revision petition, though served, have remained absent and unrepresented.
5. I have heard Sri D.R.Ravinshankar, learned counsel for the petitioner.
6. Learned counsel for the petitioner vehemently contended that the impugned order passed by the Trial Court rejecting the applications of the petitioner only on the ground that there are rival claimants claiming to be the legal representative of deceased sole plaintiff is erroneous. It is the duty of the Trial Court to adjudicate the rights of the parties under Order XXII Rule 5 of the 6 Code of Civil Procedure, and therefore, contended that the impugned order is liable to be set-aside.
7. In view of the argument advanced by the learned counsel for the petitioner, the only point that arises for consideration is:
"Whether the Trial Court is justified in rejecting the applications filed under Order XXII Rule 3, Order XXII Rule 9(2) of CPC and Section 5 of the Limitation Act, without adjudicating the rights of the parties as contemplated under Order XXII Rule 5 of the Code of Civil Procedure?"
8. I have given my anxious consideration to the arguments advanced by the learned counsel for the petitioner.
9. It is undisputed fact that the original plaintiff Siddamma filed a suit for ejectment against the 1st defendant in respect of the suit schedule property contending that she was the owner of the suit schedule property. The defendant, filed written statement 7 denying the plaint averments contending that the suit for ejectment was not maintainable. During pendency of the suit, the original plaintiff died on 12.08.2012. On the death of the original plaintiff, the present petitioner/ Smt. Chandrakala, filed applications under Order XXII Rule 3, Order XXII Rule 9(2) of CPC and Section 5 of the Limitation Act, to come on record as the legal representative of the original plaintiff/Siddamma. Respondent No.2/Umesh Gowda also filed similar applications to come on record as the legal representative of deceased Siddamma. When there is dispute between the parties claiming to be the legal representatives of a deceased person, it is mandatory on the part of the Trial Court to adjudicate the applications under Order XXII Rule 5 of the Code of Civil Procedure, which reads as under:
5.Determination of question as to legal representative: Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased 8 defendant, such question shall be determined by the Court.
[Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any recorded at such trial, its findings and reasons therefore, and the Appellate Court may take the same into consideration in determining the question.]
10. A plain reading of Order XXII Rule 5 of CPC clearly indicates that where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or defendant, such question shall be determined by the Court.
11. Admittedly, in the present case, no such determination is made by the Trial Court and such omission is contrary to the provisions of Order XXII Rule 5 of CPC. Therefore, the point raised for 9 consideration in the present Revision Petition has to be answered in the negative holding that the Trial Court is not justified in rejecting the applications filed under Order XXII Rule 3, Order XXII Rule 9(2) of CPC and Section 5 of the Limitation Act.
12. The Hon'ble Supreme Court while considering the provisions of Rules 4 and 5 of Order XXII of Code of Civil Procedure in the case of Jaladi Suguna (deceased through LRs. v. Satya Sai Central Trust and others reported in (2008) 8 SCC 521 has held as under:
16. The provisions of Rules 4 and 5 of Order 22 are mandatory. When a respondent in an appeal dies, the Court cannot simply say that it will hear all rival claimants to the estate of the deceased respondent and proceed to dispose of the appeal. Nor can it implead all persons claiming to be legal representatives, as parties to the appeal without deciding who will represent the estate of the deceased, and proceed to hear 10 the appeal on merits. The court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits.
The Code clearly provides that where a question arises as to whether any person is or is not the legal representative of a deceased respondent, such question shall be determined by the Court. The Code also provides that where one of the respondents dies and the right to sue does not survive against the surviving respondents, the Court shall, on an application made in that behalf, cause the legal representatives of the deceased respondent to be made parties, and then proceed with the case. Though Rule 5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, Rule 4 read with Rule 11 makes it clear that the appeal can be heard only after the legal representatives are brought on record.
19. We, accordingly, allow this appeal and set aside the judgment dated 19-9-2006, restore the 11 appeal to the file of the High Court, with the following directions:
I The High Court shall first decide the dispute between the husband of the deceased on the one hand, and her nieces and nephews on the other, after considering the evidence and findings dated 28-11-2005 recorded by the Trial Court and hearing the rival claimants.
II After such determination, the person(s) determined to be person(s) entitled to represent the estate of the deceased shall be brought on record as the legal representatives of the deceased.
III Thereafter, the appeal shall be heard on merits and disposed of in accordance with law.
13. The Hon'ble Apex Court while considering the provisions of Order XXII Rule 5 of Code of Civil Procedure in the case of Kanthiya Singh Santok Singh and Others v. Kartar Singh reported in (2009) 5 SCC 155 has held as under:
"19. Thus considering the ambiguous position regarding the status of the appellants relating to their status as tenants, it was necessary 12 for the High Court to remit the matter to the Trial Court for a proper determination of the factual aspects whether the appellants were in fact carrying on business with late Santok Singh at the time of his death by taking evidence and thereafter, come to a finding whether the appellants shall brought on record in second appeal as the legal representative of the Santok Singh."
14. The Hon'ble Supreme Court while considering the provisions of Section 2(11) and Order 22 Rule 5 of Code of Civil Procedure in the case of Suresh Kumar Bansal vs. Krishna Bansal and Another reported in (2010) 2 Supreme Court Cases 162 has held as under:
"19. The Code of Civil Procedure enjoins various provisions only for the purpose of avoiding multiplicity of proceedings and for adjudicating of related disputes in the same proceedings, the parties cannot be driven to different Courts or to institute different proceedings touching on different facets of the same major issue. Such a course of action will 13 result in conflicting judgments and instead of resolving the disputes, they would end up in creation of confusion and conflict. '
20. It is now well settled that determination of the question as to who is the legal representatives of the deceased plaintiff or defendant under Order XXII Rule 5 of the Code of Civil Procedure is only for the purposes of bringing legal representatives on record for the conducting of those legal proceedings only and does not operate as res judicata and the inter se dispute between the rival legal representatives has to be independently tried and decided in probate proceedings. If this is allowed to be carried on for a decision of an eviction suit or other allied suits, the suits would be delayed, by which only the tenants will be benefited.
21. In order to shorten the litigation and to consider the rival claims of the parties, in our view, the proper course to follow is to bring all the heirs and legal representatives of the deceased plaintiff on record including the legal representatives who are claiming on the 14 basis of the Will of the deceased plaintiff so that all the legal representatives namely, the appellant and the natural heirs and legal representatives of the deceased plaintiff can represent the estate of the deceased for the ultimate benefit of the real legal representatives. If this process is followed, this would also avoid delay in disposal of the suit.
22. In view of our discussions made hereinabove, we are, therefore, of the view that the High Court as well as the trial Court were not at all justified in rejecting the application for impleadment filed at the instance of the appellant based on the alleged Will of the deceased plaintiff at this stage of the proceedings.
23. Before parting with this judgment, it is necessary to consider the decision of this Court in the case of Jalai Suguna (deceased) through L.Rs. v. Satya Sai Central Trust and Others, [(2008) 8 SCC 521] cited by the learned senior counsel for the appellant. In Jalai Suguna (supra), this Court held that the 15 intestate heir (husband) and the testamentary legatees (nieces and nephews), seeking impleadment as the heirs of the deceased respondent in an appeal have to be brought on record before the Court can proceed further in the appeal. Furthermore, in that decision it was also held that a legatee under a Will, who intends to represent the estate of the deceased testator, being an intermeddler with the estate of the deceased testator, will be a legal representative.
24. In view of the aforesaid discussions and in view of the decision reported in Jalai Suguna (supra), we are also of the view that in an eviction proceeding, when a legatee under a Will intends to represent the interest of the estate of the deceased testator, he will be a legal representative within the meaning of Section 2(11) of Code of Civil Procedure, for which it is not necessary in an eviction suit to decide whether the Will on the basis of which substitution is sought for, is a suspicious one or that the parties must send the case back to 16 the probate Court for a decision whether the Will was genuine or not."
15. In view of the aforesaid reasons, the Revision Petition is allowed. The impugned order dated 06.11.2015 passed by the XVIII Addl. Judge, Court of Small Causes and Presiding Officer, IX Addl. Small Causes Judge and XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bengaluru, on I.A.Nos.17 to 22 made in SC No.2344/2011, is set-aside. The matter is remanded to the Trial Court with a direction to decide I.A.Nos.17 to 22, after following the mandatory procedure contemplated under Order XXII Rule 5 of CPC and pass orders in accordance with law, after issuing notice to the parties, as expeditiously as possible.
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16. The petitioner is permitted to appear before the Trial Court on 20.10.2016 with liberty to take necessary steps in the suit in accordance with law.
Ordered accordingly.
Sd/-
JUDGE kcm