Karnataka High Court
Smt Ramakka vs Ramalingappa on 11 June, 2025
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NC: 2025:KHC:19919
W.P. No.33266/2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.33266 OF 2019 (GM-CPC)
BETWEEN:
1. SMT. RAMAKKA
W/O VENKATAPPA
AGED ABOUT 57 YEARS.
2. SMT. MUNIVENKATAMMA
W/O HANUMANTHAPPA
AGED ABOUT 67 YEARS.
Digitally signed 3. SMT. THIPPAKKA
by RUPA V W/O MUNISWAMAPPA
Location: High AGED ABOUT 69 YEARS.
Court of
karnataka ALL ARE R/AT GUDIALAMBAGIRI
VILLAGE & POST, KASABA HOBLI
CHINTAMANI TALUK-562101.
...PETITIONERS
(BY SRI. R. KALYAN, ADV.,)
AND:
1. RAMALINGAPPA
S/O PEMANNA
AGED ABOUT 67 YEARS
R/AT. CHIKKAMUNIMANGALA VILLAGE
KOTAGAL MANDAL
AMBAJIDURGA HOBLI
CHINTAMANI TALUK-562101.
2. SMT. ANJINAMMA
W/O LATE BUDDAPPA
AGED ABOUT 97 YEARS.
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NC: 2025:KHC:19919
W.P. No.33266/2019
HC-KAR
3. B. MUNIYAPPA
S/O LATE CHIKKABUDDAPPA
AGED ABOUT 82 YEARS.
4. D.M. KRISHNAPPA
S/O SMT. GOWRAMMA
AND DODDAMUNISHAMAPPA
AGED ABOUT 42 YEARS.
5. B.M. RAMESH
S/O SMT. GOWRAMMA
AND DODDAMUNISHAMAPPA
AGED ABOUT 39 YEARS.
6. D.M. MURALI
S/O SMT. GOWRAMMA
AND DODDAMUNISHAMAPPA
AGED ABOUT 33 YEARS.
7. D. KAVITHA
D/O SMT. GOWRAMMA
AND DODDAMUNISHAMAPPA
AGED ABOUT 27 YEARS.
R2 TO R7 ARE R/AT
DODDADASARAHALLI VILLAGE
KASABA HOBLI, SIDDALAGHATTA TALUK
CHIKKABALLAPURA DISTRICT-562101.
...RESPONDENTS
(BY SRI. LOKESH L.N. ADV., R1
R2 TO R7 ARE SERVED & UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI OR ANY OTHER WRIT OR DIRECTION AND TO QUASH
THE IMPUGNED ORDER DATED 27.03.2019 ON I.A.NO.7 FILED
UNDER SECTION 5 OF THE LIMITATION ACT AND IA NO.1 & 6 UNDER
ORDER 22 RULE 4 & UNDER ORDER 22 RULE 9 OF CPC IN RA
NO.1/2012 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC AT
CHINTAMANI AS PER ANNEXURE-A TO THE WRIT PETITION AND
CONSEQUENTLY TO ALLOW THE IA NO.1 & 6 FILED UNDER ORDER
22 RULE 4 AND UNDER ORDER 22 RULE 9 OF CPC & ETC.
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NC: 2025:KHC:19919
W.P. No.33266/2019
HC-KAR
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
ORAL ORDER
This petition is filed seeking the following prayer:
(a) Issue a writ of certiorari or any other writ or direction and to quash the impugned order dated 27.3.2019 on I.A.No.7 filed under section 5 of the Limitation Act and IA No.1 & 6 under order 22 rule 4 & under order 22 rule 9 of CPC in RA No.1/2012 passed by the Senior Civil Judge and JMFC at Chintamani as per Annexure-A to the Writ Petition and consequently to allow the IA No.1 & 6 filed under order 22 rule 4 and under order 22 rule 9 of CPC.
(b) To pass such other order/s as deems fit by this Hon'ble court in the facts and circumstances of the case.
2. Sri.Kalyan R., learned counsel for the petitioners submits that the petitioners-plaintiffs have filed O.S.No.81/2008 for partition and separate possession of the suit schedule property. During the pendency of the said suit, defendant No.1-Smt.Gowramma died on 06.01.2010. However, the legal representatives of deceased defendant No.1 could not be brought on record during the pendency of the said suit. The said suit came to be dismissed on 02.12.2011. Being aggrieved, the petitioners-plaintiffs have filed R.A.No.1/2012 before the Court of Senior Civil Judge and JMFC, Chintamani -4- NC: 2025:KHC:19919 W.P. No.33266/2019 HC-KAR (for short, 'Appellate Court') and in the said appeal, I.A.No.1 came to be filed on 17.04.2012 under Order XXII Rule 4 read with Section 151 of CPC to bring the legal representatives of defendant No.1 on record, later I.A.Nos.3, 4 & 5 came to be filed on 26.11.2014 under Section 5 of the Limitation Act, Order XXII Rule 9 and Order XXII Rule 4 of CPC respectively, and those applications were pending before the trial Court and when the matter was posted for final hearing, the applications in I.A.No.6 came to be filed under Order XXII Rule 9 of CPC and I.A.No.7 under Section 5 of Limitation Act seeking similar prayer. The appellate Court, solely on the ground of limitation, dismissed I.A.No.7 and consequently held that I.A.No.6 does not survive for consideration in view of dismissal of I.A.No.7.
3. It is submitted that though there is some lapse on the part of the petitioners-plaintiffs in filing the applications within time, the appellate Court without considering the earlier applications filed by the petitioners and keeping those applications pending, proceeded to reject I.A.No.7 on hyper technical ground that no sufficient cause is shown in the affidavit. It is further submitted that the petitioners are the -5- NC: 2025:KHC:19919 W.P. No.33266/2019 HC-KAR sisters of deceased Gowramma and if the appeal is allowed by arraying the legal representatives of defendant No.1 on record, no prejudice would cause to the legal representatives of defendant No.1 and they also would get their share in the suit schedule property. Hence, he seeks to set aside the impugned order by allowing the pending applications by permitting the legal representatives of deceased defendant No.1 to be brought on record in the pending appeal.
4. Per contra, Sri.Lokesh L.N., learned counsel for the respondent No.1 supports the impugned order of the trial Court and submits that there is negligence on the part of the petitioners-plaintiffs, firstly they could not bring the legal representatives of deceased defendant No.1 in the original suit, secondly, the application is filed belatedly and there is a delay of 1751 days in filing the application to bring the legal representatives of deceased defendant No.1, which has been rightly considered by the appellate Court and by assigning detailed reasons, the appellate Court rejected the application, hence, the same does not call for interference. -6-
NC: 2025:KHC:19919 W.P. No.33266/2019 HC-KAR
5. Respondent No.2 to 7 are served and they remained unrepresented.
6. I have heard the learned counsel for the petitioners, learned counsel for the respondent No.1 and perused the material available on record.
7. The pleading and material available on record indicates that O.S.No.81/2008 filed by the petitioners-plaintiffs for partition and separate possession against respondent No.1 herein and deceased Gowramma came to be dismissed on 02.12.2011. It is not in dispute that during the pendency of the aforesaid suit, defendant No.1 Smt.Gowramma died on 06.01.2010, however, the legal representatives of said defendant could not be brought on record by the petitioners before the trial Court. Being aggrieved by the judgment and decree in O.S.No.81/2008, the petitioners have filed R.A.No.1/2012, which is pending before the Court of Senior Civil Judge and JMFC, Chintamani. In the said appeal, I.A.No.1 was filed by the petitioners on 17.04.2012 under Order XXII Rule 4 read with Section 151 of CPC, but no application for setting aside abatement and condonation of delay was filed. -7-
NC: 2025:KHC:19919 W.P. No.33266/2019 HC-KAR The records further indicate that the said application was kept pending by the appellate Court. Later I.A.Nos.3, 4 & 5 were filed by the petitioners-plaintiffs on 26.11.2014 under Section 5 of Limitation Act, under Order XXII Rule 9 and under Order XXII Rule 4 of CPC respectively, seeking prayer to bring the legal representatives of deceased defendant No.1 on record by setting aside the abatement and by condoning the delay. Even the said applications are kept pending by the appellate Court. If I.A.No.1 is considered, the delay in filing the application would be approximately 2 years and 3 months and even though I.A.Nos.3, 4 & 5 are pending, the petitioners-plaintiffs again filed I.A.No.6 under Order XXII Rule 9 of CPC on 15.12.2017 and I.A.No.7 under Section 5 of Limitation Act for condonation of delay on 15.12.2017. The appellate Court, on considering the same, rejected both the applications. There is no dispute that there is a delay in filing the application to bring the legal representatives of deceased defendant No.1 on record. However, the delay is approximately 2 years and 3 months and not 1751 days as observed by the trial Court. -8-
NC: 2025:KHC:19919 W.P. No.33266/2019 HC-KAR
8. Considering the peculiar facts and circumstances of the case and also keeping in mind that no prejudice would be caused to the legal representatives of deceased defendant No.1 as the suit filed against deceased defendant No.1 and other defendants came to be dismissed, the interest of justice would be met if the legal representatives of deceased defendant No.1 are permitted to be brought on record in the pending appeal.
9. It is trite law that the Courts have to adopt justice oriented approach in considering the applications filed under Order XXII Rule 4 of CPC and it cannot reject the applications on hyper-technical grounds, though the explanation for condonation of delay is not given for every single day's delay, however, if sufficient cause is shown for the delay, the same has to be condoned and the word 'sufficient cause' is required to be interpreted liberally while considering such applications.
10. Learned counsel for the respondent No.1 is right in his submission that there is a lapse on the part of petitioners in filing the application, and if the applications are allowed on terms, the interest of justice would be met. -9-
NC: 2025:KHC:19919 W.P. No.33266/2019 HC-KAR
11. For the aforementioned reasons and considering the said submission made by learned counsel for the respondent No.1, I am of the considered view that petition deserves to be allowed subject to certain terms. Hence, I proceed to pass the following:
ORDER i. The writ petition is allowed. ii. The impugned order dated 27.03.2019 passed on I.A.No.7 filed under Section 5 of the Limitation Act and I.A.No.1 & 6 under Order XXII Rule 4 and under Order XXII Rule 9 of CPC in R.A.No.1/2012 by the Senior Civil Judge and JMFC, Chintamani, is hereby set aside. iii. The delay in filing the application under Order XXII Rule 4 of CPC is condoned, abatement is set aside. LRs of deceased defendant No.1-Smt.Gowramma are permitted to be brought on record.
iv. It is made clear that legal representatives of deceased defendant No.1 can raise all just defenses available under law.
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NC: 2025:KHC:19919 W.P. No.33266/2019 HC-KAR v. The aforesaid order is passed subject to petitioners paying cost of Rs.10,000/-, out of which Rs.5,000/- shall be paid to legal representatives of deceased defendant No.1 and balance Rs.5,000/- shall be paid to respondent No.1 herein.
vi. The appellate Court shall dispose of the appeal as early as possible.
Sd/-
(VIJAYKUMAR A. PATIL) JUDGE BSR List No.: 1 Sl No.: 36