Karnataka High Court
Shabana Begum vs Smt.Qudsia Tanveer on 18 January, 2023
Author: S Sunil Dutt Yadav
Bench: S Sunil Dutt Yadav
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WP No. 33975 of 2019
C/W WP No. 13528 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV
WRIT PETITION NO.33975 OF 2019 (GM-CPC)
C/W
WRIT PETITION NO.13528 OF 2021 (GM-CPC)
IN W.P. NO.33975/2019
BETWEEN:
1. SMT. QUDSIA TANVEER
W/O SRI ARJMAND AHMED
AGED ABOUT 60 YEARS
DOOR NO.10/11, 6TH CROSS
22ND MAIN, VINAYAKANAGAR
J P NAGAR, 5TH PHASE
BANGALORE-560 78
... PETITIONER
(BY SRI. K.N. NITISH, ADVOCATE FOR
SRI K V NARASIMHAN., ADVOCATE)
AND:
1. SMT. SHABANA BEGUM
ALLEGED W/O LATE NASRULLA KHAN
AGED ABOUT 48 YEARS
2. MOHAMMED EITHESHAM
ALLEGED S/O LATE NASRULLA KHAN
Digitally signed
by VIJAYA P AGED ABOUT 28 YEARS
Location: High
Court of 3. HUZAIFA BEGUM
Karnataka ALLEGED D/O LATE NASRULLA KHAN
AGED ABOUT 26 YEARS
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WP No. 33975 of 2019
C/W WP No. 13528 of 2021
ALL ARE R/AT DOOR NO.1151
1ST STAGE, NEAR SHIVANNA HOTEL
RAJIVNAGAR,
MYSORE - 570 019.
... RESPONDENTS
(BY SRI. S.V. GIRIDHAR, ADVOCATE FOR R1 TO R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET
ASIDE THE ORDER DATED 24.06.2019 PASSED IN
O.S.NO.944/2013 ON I.A.NO.4 BY THE LEARNED I ADDITIONAL
SENIOR CIVIL JUDGE AND CJM AT MYSURU AT ANNEXURE-G
AND ETC.
IN W.P. NO.13528/2021
BETWEEN:
1. SMT. SHABANA BEGUM
WIFE OF LATE NASRULLA KHAN
AGED ABOUT 44 YEARS
2. MOHAMMED EITHESHAM
SON OF LATE NASRULLA KHAN
AGED ABOUT 24 YEARS
3. HUZAIFA BEGUM
D/O LATE NASRULLA KHAN
AGED ABOUT 20 YEARS
ALL RESIDING AT DOOR NO.1151
1ST STAGE, NEAR SHIVANNA HOTEL
RAJIVNAGAR,
MYSURU.
... PETITIONERS
(BY SRI GIRIDHAR S.V., ADVOCATE)
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WP No. 33975 of 2019
C/W WP No. 13528 of 2021
AND:
1. SMT. QUDSIA TANVEER
WIFE OF SRI ARJMAND AHMED
AGED ABOUT 51 YEARS
RESIDING AT DOOR NO.543/H 1,
NORTH EAST OF N.R. MOHALLA,
MYSURU.
AND ALSO AT
NO.10/11, 6TH CROSS
22ND MAIN, VINAYAKANAGAR
J P NAGAR, 5TH PHASE
BANGALORE-560 78
... RESPONDENT
(BY SRI. K.N. NITISH, ADVOCATE FOR
SRI K V NARASIMHAN., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE
RECORDS ON THE FILE OF 5TH ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC MYSORE IN O.S. NO.944/2013 CULMINATING
IN THE ORDER IMPUGNED AND QUASH THE ORDER PASSED BY
THE 5TH ADDITIONAL SENIOR CIVIL JUDGE AND JMFC
MYSORE IN O.S. NO.944/2013 DATED 08.04.2021 ON
INTERLOCUTORY APPLICATION NO.19 AS AT ANNEXURE-G AND
CONSEQUENTLY DISMISS INTERLOCUTORY APPLICATION
NO.19 IN ENTIRETY AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 33975 of 2019
C/W WP No. 13528 of 2021
ORDER
W.P.No.33975/2019 has been filed by the defendant before the trial Court calling in question the correctness of the order passed on I.A.4 whereby the trial Court after an enquiry under Order 22 Rule 5 of CPC, has allowed the application filed by the applicants to bring them on record as legal representatives of plaintiff.
On the other hand, W.P.No.13528/2021 has been filed by the applicants who were allowed in terms of I.A.4 to represent the estate of deceased Nasrulla Khan and have called in question the correctness of the order passed on I.A.19, whereby the trial Court has framed an additional issue, which reads as hereunder:
"Whether the plaintiffs 1(a) to 1(c) prove that they are the legal representatives of the deceased Plaintiff Nasrulla Khan?"
2. Both the writ petitions are taken up together and a common order is passed noticing that the orders -5- WP No. 33975 of 2019 C/W WP No. 13528 of 2021 passed relate to the same suit and also factual matrix is same.
3. The parties are referred to as per their ranking before the trial Court.
4. The suit came to be filed by Nasrulla Khan against Smt. Qudsia Tanveer seeking specific performance of the contract dated 16.06.2012. Nasrulla Khan subsequently died during the pendency of the suit on 16.04.2018. The application to come on record as legal representatives of deceased Nasrulla Khan came to be filed on 03.07.2018. The affidavit filed in support of the application had set out the facts that the applicants were the wife and 2 children who are the only legal representatives of deceased. The said application was objected to with a specific contention by the defendant that Nasrulla Khan had died as a bachelor and the applicants ought to have taken a succession certificate to -6- WP No. 33975 of 2019 C/W WP No. 13528 of 2021 show their status as legal representatives of Nasrulla Khan.
5. In light of the objections, an enquiry was held as regards the said application and affidavit by way of examination-in-chief came to be filed by Shabana Begum asserting her position as wife of late Nasrulla Khan. Various documents in support of such stand came to be marked including copies of Aadhaar Card, PAN card, Passport, birth certificate and SSLC Marks card of the son
- Mohammed Eithesham and the daughter - Huzaifa Begum. Copy of ration card at Ex.A.13 was also filed.
6. The said application came to be allowed after an enquiry.
7. Learned counsel for the defendant assailed the said order on various grounds; that there are various discrepancies as regards to the age of wife of Nasrulla Khan, insofar as the age of the wife is shown differently in -7- WP No. 33975 of 2019 C/W WP No. 13528 of 2021 different documents. It is also contended that, in Nikha Nama, name of father of Nasrulla Khan is mentioned as 'Dastagir Khan' which is contrary to the plaint wherein name of the father of Nasrulla Khan is mentioned as 'Dastagir Pasha'. It is further specifically contended that the deceased Nasrulla Khan was a bachelor. It is contended in the alternate that the decision that is made in the enquiry under Order 22 Rule 5 of CPC is to be clarified as the summary finding subject to further consideration during the trial as the limited purpose of Order 22 Rule 5 is only to bring the legal representatives on record to ensure that the estate of the deceased is represented, to preempt any other contention being raised relating to non-representation of interest of deceased in the proceedings.
8. Reliance is placed on the judgments of the Apex Court in the cases of (a) Jaladi Suguna (Deceased) through Legal Representatives vs. Satya Sai Central -8- WP No. 33975 of 2019 C/W WP No. 13528 of 2021 Trust and others - AIR 2008 SC 2866 (b) Patel Nanjegowda and others vs. Krishnamurthy and others - MANU/KA/4564/2020 (c) Surayya vs. Jainuddin - MANU/KA/4397/2021.
9. It is contended that the legal position that is emanating from the reading of the judgments is that the enquiry under Order 22 Rule 5 is for the limited purpose of representing the estate of deceased and would not be conclusive as regards to the heirship of the deceased. Accordingly, it is submitted that this aspect requires to be clarified.
10. Learned counsel for the applicants who were subsequently ordered to be brought on record as legal representatives of Nasrulla Khan submits that the order of the trial Court on I.A.4 is a detailed order and has been passed after a full-fledged enquiry and looking into the nature of enquiry and the findings of the trial Court, no grounds are made out to interfere with the correctness of -9- WP No. 33975 of 2019 C/W WP No. 13528 of 2021 the order. It is further contended that the trial Court has rightly taken note of the contradictions and held that the contradictions as pointed out by the defendant will not have the effect of recording a finding that the applicants are not the legal representatives of deceased Nasrulla Khan. It is also submitted that in exercise of jurisdiction under Article 227 of the Constitution of India, the interference itself being extremely limited, no grounds are made out to interfere with the order passed. Reliance is placed on the judgment of the Apex Court in the case of Varadarajan vs. Kanakavalli and others - (2020) 11 SCC 598 and it is contended that the enquiry under Order 22 Rule 5 is conclusive and cannot be reopened at a subsequent stage in the same proceedings and if at all there is any point to be urged by any of the legal representatives, the same is to be relegated to a separate suit.
11. Insofar as W.P.No.13528/2021, the applicants have challenged the order passed on I.A.19 whereby the
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WP No. 33975 of 2019C/W WP No. 13528 of 2021 trial Court has framed an additional issue as extracted above.
12. Sri. Giridhar S.V., learned counsel for the applicants has argued that once the application is allowed after a detailed enquiry under Order 22 Rule 5 of CPC, the trial Court ought not to have framed the additional issue under Order 14 Rule 5 of CPC as the findings in the enquiry under Order 22 Rule 5 of CPC is to be taken to be conclusive. It is further pointed out that the defendant has taken advantage of the order passed by the learned Single Judge in W.P.No.33975/2019 at the first instance on 09.10.2019 and only thereafter application under Order 14 Rule 5 of CPC was filed before the trial Court specifically assailing the relationship. It is submitted that if the challenge to the order under Order 22 Rule 5 of CPC is considered and if it is held in affirmative, then the question of entering into framing of additional issue would not arise in light of the findings under Order 22 Rule 5 of
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WP No. 33975 of 2019C/W WP No. 13528 of 2021 CPC being binding on the trial Court in the subsequent proceedings as well.
13. Heard both sides.
14. The points that arise for consideration are:
1) Whether the grounds are made out to interfere with the order passed by the trial Court on I.A.4 in exercise of jurisdiction under Article 227 of the Constitution of India?
2) Whether the order passed framing additional issue on I.A.19 requires to be interfered?
15. Point No.1:
It must be noted that the original prayer of the suit admittedly is one for specific performance. It is not in dispute as is made out from the records that Nasrulla Khan died on 16.04.2018. The defendant has filed objection to the application under Order 22 Rule 3 of CPC, contents of which have already been referred to above.
The trial Court in its detailed order has gone through all
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the evidence placed on record and has narrated at Paragraph Nos. 8 and 9 relating to the documents relied on by the applicants in detail.
16. Insofar as the discrepancies pointed out relating to the address in the documents, the trial Court at Paragraph No.9 has discussed regarding the said discrepancy and arrived at a conclusion that the non- mentioning of "Devanur" in the documents produced by the applicants cannot have the effect of recording a finding that the applicants and the deceased plaintiff - Nasrulla Khan were residing in different places. The trial Court has also taken note of the assertion of the defendant relating to Ex.A.13 - Ration Card wherein the name of Nasrulla Khan is not mentioned as head of the family. As regards the said contention, A.W1 - Shabana Begum has explained that as she used to get ration, accordingly, her name is mentioned as head of the family. The trial Court has accepted the explanation given by A.W1 and stated that
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WP No. 33975 of 2019C/W WP No. 13528 of 2021 mere absence of name of Nasrulla Khan as head of the family in the ration card, it will not lead to disbelieving the said document.
17. Insofar as Nikha Nama at Ex.A14 wherein the father's name of Nasrulla Khan is mentioned as 'Dastagir Khan' but in the plaint, the father's name of Nasrulla Khan is mentioned as 'Dastagir Pasha', the trial Court has observed that it may be due to typographical error or by oversight and accordingly, the trial Court has recorded a finding that the discrepancy cannot discredit the contentions of the applicants.
18. The trial Court has also noticed that though it is a specific defence of the defendant that Nasrulla Khan died as a bachelor, no independent evidence was led in by the defendant to prove the said assertion and accordingly, there are no grounds made out to disbelieve the case put forward by the applicants and eventually has allowed the application.
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WP No. 33975 of 2019C/W WP No. 13528 of 2021
19. Perused the material on record which are the documents produced before the trial Court and a perusal of the passport of Shabana Begum at Annexure-F and her Aadhaar Card at Annexure-F1, it would reveal that the house number is mentioned as "1151" and the Place is mentioned as "Rajeev Nagar" in both the documents. Though in the document at Annexure-F, it is mentioned as "near Shivanna Circle" while in Annexure-F1 it is mentioned as "near Shivanna Hotel", such minor variation has been rightly held by the trial Court to be inconsequential.
20. It is also noticed that insofar as Annexure-F3 which is the passport of the son, who is the 2nd applicant, the house address is mentioned as 'No.1151, Rajiv Nagar, Mysore City'. The contention relating to non-mentioning of correct address by pointing out to the discrepancies including non-mentioning of "I Floor", it must be noted that the same is also of inconsequential nature. Further,
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WP No. 33975 of 2019C/W WP No. 13528 of 2021 in the birth certificate and the SSLC Marks card of the son produced at Annexure-F5 and F6 respectively, the mother's name is mentioned as 'Shabana Begum' and father's name is mentioned as 'Nasrulla Khan. Similarly, in the birth certificate (Annexure-F11) and the SSLC Marks card (annexure-F10) of the daughter, who is the 3rd applicant, the mother's name is mentioned as 'Shabana Begum' and father's name is mentioned as 'Nasrulla Khan.
21. From the above, it is clear that the conclusion of the trial Court on the basis of appreciation of evidence does not call for any interference in light of the limited jurisdiction of this Court under Article 227 of the Constitution of India. Findings of facts cannot held to be perverse and the appreciation of evidence cannot be gone into in the absence of any jurisdictional error.
22. Accordingly, Point No.1 is answered in negative. W.P.No.33975/2019 filed assailing the order passed on I.A.4 filed under 22 Rule 3 of CPC is rejected.
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WP No. 33975 of 2019C/W WP No. 13528 of 2021
23. Point No.2: It is necessary to record a finding as regards to the contention made on behalf of the applicants that the findings under Order 22 Rule 5 of CPC that has been made would have the effect of tying the hands of the court in not raising any additional issue relating to the relationship between the applicants and Nasrulla Khan as has been done under I.A.19. While various judgments have been relied upon by both the sides, what comes out on a combined reading of the judgments is that no doubt normally the findings in an application under Order 22 Rule 5 is for the limited purpose of bringing the legal representatives on record, however, where there is a complete enquiry and all evidence has been led in after affording full opportunity as is made out in the present case, the question of re- agitating the issue on a subsequent stage may not arise. In this regard, the decision of Apex Court in the case of
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WP No. 33975 of 2019C/W WP No. 13528 of 2021 Varadarajan vs. Kanakavalli and others - (2020) 11 SCC 598 at para 11 reads as hereunder:
"11. The judgment in Mohinder Kaur [Mohinder Kaur v. Piara Singh, 1980 SCC OnLine P&H 251 :
AIR 1981 P&H 130] was referred to and approved by this Court in a judgment in Dashrath Rao Kate v. Brij Mohan Srivastava [Dashrath Rao Kate v. Brij Mohan Srivastava, (2010) 1 SCC 277 : (2010) 1 SCC (Civ) 86] . In the said case, the High Court came to the conclusion that since the inquiry under Order 22 Rule 5 of the Code was of a summary nature, it was limited only to the determination of the right of the appellant therein to be impleaded as the legal representative. This Court in the said case held as under: (Dashrath Rao Kate case [Dashrath Rao Kate v. Brij Mohan Srivastava, (2010) 1 SCC 277 : (2010) 1 SCC (Civ) 86] , SCC pp. 283-85, paras 21 & 25-26) " 21. As a legal position, it cannot be disputed that normally, an enquiry under Order 22 Rule 5 CPC is of a summary nature and findings therein cannot amount to res judicata, however, that legal position is true only in respect of those parties, who set up a rival claim against the legatee. For example, here, there were two other
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persons, they being Ramesh and Arun Kate, who were joined in the civil revision as the legal representatives of Sukhiabai. The finding on the will in the order dated 9-9-1997 passed by the trial court could not become final as against them or for that matter, anybody else, claiming a rival title to the property vis-à-vis the appellant herein, and therefore, to that extent the observations of the High Court are correct. However, it could not be expected that when the question regarding the will was gone into in a detailed enquiry, where the evidence was recorded not only of the appellant, but also of the attesting witness of the will and where these witnesses were thoroughly cross-examined and where the defendant also examined himself and tried to prove that the will was a false document and it was held that he had utterly failed in proving that the document was false, particularly because the document was fully proved by the appellant and his attesting witness, it would be futile to expect the witness to lead that evidence again in the main suit."
24. It is to be noticed that in the present matter, the wife of late Nasrulla Khan has led in evidence and she has produced various documents including the birth
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WP No. 33975 of 2019C/W WP No. 13528 of 2021 certificates of her children, Aadhaar Cards of her children, ration card as well as the Nikha Nama. The detailed cross- examination has been made on the said documents. When full opportunity was provided by holding an enquiry, as rightly observed by the trial Court, even in the objection though the defence that Nasrulla Khan was a bachelor has been raised, no independent evidence to support such assertion has been led in. The burden of proof of showing the relationship between the applicants and the deceased Nasrulla Khan has been rightly discharged on the basis of the documents produced. Once there is full-fledged enquiry, question of further keeping the same question open in a subsequent stage of the suit by framing an additional issue would not arise. If there was only summary enquiry, then it is under such circumstances, this question could have been permitted to be agitated at a subsequent stage.
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WP No. 33975 of 2019C/W WP No. 13528 of 2021
25. It must also be noted that this is a suit for specific performance. Relationship of defendant vis-a-vis the family of Nasrulla Khan ought to be kept in mind insofar as the defendant is a stranger to the family of Nasrulla Khan and it has been proved beyond proof of preponderance of probability that the applicants belong to the family of Nasrulla Khan, no further enquiry imposing additional burden ought to be permitted.
26. It must be noted that suit was filed initially for specific performance. Once the right enures to the benefit of the legal representatives and applicants have proved beyond preponderance of probability that they are the legal representatives, question of permitting the defendant to reopen that question would not arise in the peculiar facts of the case in light of the complete enquiry having been conducted in the application of Order 22 Rule 3 of CPC and there is no scope for any further enquiry as such that is required.
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27. It must be also noted that the question of framing additional issue would not arise in light of the findings made in the impugned order disposing I.A. 4 under Order 22 Rule 3 of CPC that has been held to be valid as above. More so, when this Court has recorded a finding that the enquiry was full-fledged enquiry and literally nothing remained for reopening that finding.
28. Accordingly, Point No.2 is held in affirmative. W.P.No.13528/2021 is allowed and the additional issue framed is set aside.
Accordingly, both the writ petitions are disposed off.
Sd/-
JUDGE VP