Karnataka High Court
Sri. Shanmugham vs Sri. Muthu on 4 July, 2013
Bench: N.K.Patil, B.Manohar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF JULY, 2013
:PRESENT:
THE HON'BLE MR.JUSTICE N.K.PATIL
AND
THE HON'BLE MR.JUSTICE B.MANOHAR
R.F.A.No. 1805 OF 2010 (PAR)
Between:
1. Sri. Shanmugham,
S/o. Late Subramani,
Aged about 54 years.
2. Sri. S.Rajendran,
S/o. Late Subramani,
Aged about 52 years.
3. Sri. S. Ravi,
S/o. Late Subramani,
Aged about 47 years.
4. Smt. Vijayalakshmi,
D/o. Late Subramani,
Aged about 45 years.
Appellants 1 to 4 are
R/at. No.70, 4th Link Road,
Behind Ayyappa Swamy Temple,
Madiwala New Extension,
Bangalore-68.
...Appellants
(By Sri. C.R.Subramanya, Advocate)
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And :
1. Sri. Muthu,
S/o. Thailappa Goundar,
Aged about 79 years,
R/o. Ashok Plastic
Industry Compound,
Near Deccan Wires,
Begur Road, Bommanahalli,
Bangalore-68.
2. Smt. Eshwaramma,
W/o. Late Raju,
Aged about 68 years.
3. Sri. Krishna,
S/o. Late Raju,
Aged about 48 years.
4. Smt. Padmavathi,
D/o. Late Raju,
Aged about 44 years.
5. Sri. Narayana,
S/o. Late Raju,
Aged about 41 years.
The respondents 2 to 5 are
R/o. Vinayaka Cable Vision,
Chinnamma Layout,
Madiwala New Extension,
Bangalore-68.
...Respondents
(By Smt. Deepashree, Advocate for R1;
R2 to R5 served)
*******
This RFA is filed U/S 96 of CPC, against the order
dated 27/07/2010 passed in O.S.No.7275/2007 on the file
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of the Principal City Civil and Sessions Judge, Bangalore,
dismissing the suit for partition.
This R.F.A. coming on for Admission this day,
N.K. PATIL J, delivered the following:
:J U D G M E N T:
This appeal by the plaintiffs-appellants is directed against the impugned order dated 27.7.2010 passed by the Principal City Civil and Sessions Judge, Bangalore, in O.S.No.7275/2007, wherein, the suit filed by the appellants was dismissed as it was filed against a dead person.
2. It is the case of the appellants that, their father and the respondent No.1 herein and late Raju, the husband of respondent No.2 and father of respondent Nos. 3 to 5 have jointly purchased the suit schedule property by means of a registered sale deed dated 24.9.1969. After the purchase, the katha was transferred jointly in the name of these three persons and they continued to be in joint possession and enjoyment of the same. After the death of Subramani, 4 the appellants herein succeeded to his estate as legal heirs and they are entitled for 1/3rd share in the suit schedule property. Therefore, they filed a suit for partition of their 1/3rd share by metes an bounds before the Trial Court in OS No.7275/2007. The said suit was filed against Muthu, the 2nd purchaser and the 3rd purchaser Sri. Raju was dead. Therefore, the appellants filed the suit against his legal representatives, who are defendant Nos. 2 to 5/respondent Nos. 2 to 5. During the pendency of the suit, it was noticed that the respondent No.3, Sri. Krishna, s/o. late Raju was dead. Therefore, they filed an application under order 1 Rule 10(2) to implead his LRs. The proposed defendants, after service of notice entered appearance and filed a memo stating that the original suit filed against the defendant No.3 Sri. Krishna, S/o. late Raju was not maintainable since it was filed against a dead person. The Trial Court, accepting the stand taken by the respondents in their memo, has dismissed the suit filed 5 by the appellants on 27.7.2010 holding that the suit does not survive for consideration since, it is filed against a dead person. Being aggrieved by the said order, the appellants have presented this appeal.
3. We have heard learned counsel appearing for appellants Sri. C.R.Subramanya and learned counsel for respondent No.1.
4. Learned counsel appearing for appellants Sri. C.R.Subramanya, at the outset submitted that, the impugned order passed by the Trial Court is liable to be set aside at threshold. To substantiate the said submission, he submitted placing reliance on the judgment of this Court in the case of Sudarsan Trading Co., Vs. B.T.V. Raju and others reported in (1979) 1 Karnataka Law Journal 329 that, under order 1 Rule 10 and order 22 Rule 4, suit against dead person and others is maintainable, since suit is not bad at its inception when there are defendants more than one, even when one of the defendants was dead prior to 6 the institution of the suit and in such circumstances, it is permissible for the plaintiff to bring the LRs of the deceased on record, provided the Court should hear the objections if any raised by the proposed LRs with regard to limitation. Therefore, he submitted that the order impugned passed by the Trial Court is liable to be set aside.
5. Per contra, learned counsel appearing for respondent No.1, submitted that the impugned order passed by the Trial Court is just and proper and in accordance with the relevant Rules and therefore, it does not call for interference.
6. After hearing the learned counsel for both the parties and after careful perusal of the materials available on record, it emerges that, the appellants are the plaintiffs and they have filed a suit before the Trial Court for partition and possession of their 1/3rd share in the suit schedule property against five defendants and out of them, one defendant is reported to be dead 7 before the institution of the suit. The said fact came to their knowledge only after service of notice to the defendants. Immediately, they filed an application to bring the LRs of the deceased R3 and after notice, LRs are represented through their counsel and they filed a memo stating the suit is not maintainable and is liable to be dismissed on the ground that, it is instituted against a dead person. The Trial Court has failed to notice that, under order 1 Rule 10, suit against dead person and others is maintainable and in the instant case also, deceased is not only the defendant and there are four other defendants and it is permissible for the appellants to file an application for bringing LRs of deceased R3. But the Trial Court, accepting the memo filed by the LRs of deceased R3, has dismissed the suit and therefore, it is liable to be set aside, without going further into the merits and demerits of this case and the matter requires reconsideration afresh by the Trial Court.
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7. For the foregoing reasons, the appeal filed by the appellants is allowed in part.
The impugned order dated 27.7.2010 passed in O.S.No.7275/2007 by the Principal City Civil and Sessions Judge, Bangalore, in O.S.No.7275/2007, is hereby set aside and the matter stands remitted back to the Trial Court for reconsideration afresh, with a direction to pass appropriate orders, in accordance with law, after affording reasonable opportunity of hearing to both the parties and dispose of the same expeditiously.
Office is directed to return the entire original records to the jurisdictional Trial Court, immediately Ordered accordingly.
SD/-
JUDGE SD/-
JUDGE tsn*