Karnataka High Court
Smt Mangamma vs Smt Sridevi B on 15 June, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC:20643
CRP No. 222 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU R
DATED THIS THE 15TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CIVIL REVISION PETITION NO. 222 OF 2023 (IO)
BETWEEN:
1. SMT. MANGAMMA
W/O. LATE KRISHNAPPA
AGED ABOUT 66 YEARS,
2. SRI M. NARASIMHULU
S/O. LATE KRISHNAPPA
AGED ABOUT 43 YEARS,
3. SRI M. ANAND
S/O. LATE KRISHNAPPA
AGED ABOUT 34 YEARS,
PETITIONER NOS.1 TO 3 ARE
RESIDING AT NO.2-1,
CHINNAPPAREDDYPALLI
RAMASAMUDRAM MANDALAM,
KAPPALLE GRAMA PANCHAYAT
Digitally signed ANNAMAYA DISTRICT-517- 417.
by SHARANYA T
Location: HIGH
...PETITIONERS
COURT OF
KARNATAKA (BY SRI R. SUBRAMANYA , ADVOCATE FOR
SRI VARUN R.R., ADVOCATE)
AND:
1. SMT. SRIDEVI B.
W/O. LATE TULASI KUMAR M.
@ TULASI KUMAR MELUPAKA
AGED BOUT 27 YEARS
2. KUM. LIKHITHA
D/O. LATE TULASI KUMAR M.
@ TULASI KUMAR MELUPAKA
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NC: 2023:KHC:20643
CRP No. 222 of 2023
AGED BOUT 3 YEARS
SINCE MINOR REPRESENTED BY
NATURAL GUARDIAN, MOTHER
SMT. SRIDEVI B.
BOTH RESPONDENT NOS.1 AND 2
ARE R/AT NO.3-84
MOOREANDRA PALLI
MUNELLAPALLE,
KALIKIRI,
ANNAMAYYA DITRICT-517 213.
3. SRI T. DAMODHARA
S/O. SUNDARAMMA
AGED ABOUT 21 YEARS
R/AT NO.2-1, CHENNAREDDYPALLE,
RAMASAMUDRAM MANDALAM
KAPPALE GRAMA PANCHAYAT
ANNAMAYYA DISTRICT-517 417.
4. MOORE RETAIL PRIVATE LTD.
FORMERLY KNOWN AS
MORE RETAIL LIMITED AND
PRIOR TO THAT AS
ADITYA BIRLA RETAIL LTD.
5TH AND 6TH FLOOR
SKYLINE ICON, 86/92
ANDHERI KURLA ROAD,
NEAR MITTAL INDUSTRIAL ESTATE
ANDHERI (EAST)
MUMBAI-400 059.
REPRESENTED BY ITS HR
AND ALSO AT
MORE RETAIL PVT LTD.
FORMERLY KNOWN AS
MORE RETAIL LIMITED
AND PRIOR TO THAT AS
ADITYA BIRLA RETAIL LTD.
NO.178/2, HULLAHALLI, C.K. PALYA,
SAKALAVARA POST
BANGALORE-560 083.
...RESPONDENTS
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NC: 2023:KHC:20643
CRP No. 222 of 2023
(BY SRI C.H. RAMACHANDRA REDDY, ADVOCATE FOR R1 & R2;
V/O. DT. 08.06.2023, NOTICE TO R3 IS DISPENSED WITH;
V/O. DT. 08.06.2023, NOTICE TO R4 IS HELD SUFFICIENT)
THIS CRP IS FILED UNDER SECTION 115 OF CPC
AGAINST THE ORDER DATED 14.03.2023 PASSED ON IA NO.4
IN P AND SC NO.26/22 ON THE FILE OF THE III ADDITIONAL
SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU, REJECTING THE IA FILED UNDER ORDER 7 RULE
11(a) AND (d) OF CPC FOR REJECTION OF PLAINT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioners and learned counsel for the respondents.
2. In this revision petition, the revision petitioners have assailed the order passed by the Trial Court dated 14.03.2023 passed on I.A.No.4 filed under Order 7, Rule 11(a) and (d) read with Section 151 of C.P.C. in P and S.C. No.26/2022 dismissing the application.
3. The factual matrix of the case of the petitioners before the Trial Court in P and S.C.No.26/2022 is that the petitioners had filed a petition under Section 372 Indian Succession Act, 1925 ('the Act' for short) praying the Court to -4- NC: 2023:KHC:20643 CRP No. 222 of 2023 grant an order of succession certificate in their favour that they are entitled for 2/3rd share in the death benefits i.e., GPF, PF etc., of Late Tulasi Kumar M. which amounts to Rs.11,33,332/- which is jointly and severally payable by the respondents Nos.1 and 5.
4. It is contended in the petition that the petitioners are the wife and daughter of deceased Tulasi Kumar M., who is gainfully employed with the respondent No.5-company and came to know that the respondent Nos.1 to 3 have fraudulently obtained the death benefits of Late Tulasi Kumar M. Hence, they filed the petition.
5. The respondent Nos.1 to 3 i.e., the petitioners herein have filed an application under Order 7, Rule 11 (a) and
(d) read with Section 151 of C.P.C. praying the Court to reject the plaint, as it is without any cause of action and as such, being barred by law. In support of the application, an averment is also made that the petition is completely silent about how cause of action arose on 25.01.2022 and on 28.03.2022 and it is contended that the deceased is a permanent employee of Chittoor, Andhra Pradesh and the same -5- NC: 2023:KHC:20643 CRP No. 222 of 2023 does not comply with Section 371 of the Act and also hit by Section 20 of the C.P.C. and prayed the Court to reject the plaint.
6. This application is resisted by the respondents by filing statement of objection contending that, it is an admitted fact that the deceased was staying and working in Bengaluru and the death certificate also clearly discloses that he died in Bengaluru and when he was gainfully employed in Bengaluru, the very contention that there is no jurisdiction and cause of action and the same is barred by law cannot be accepted. It is contended that, though the deceased was a resident of Andhra Pradesh, but he was resident of Konadasapura, Virgonagar Post, Bengaluru East Taluk and the same is also reported by the police in UDR case and the death certificate also discloses the place of death of deceased as Konadasapura, Virgonagar Post, Bengaluru East Taluk and the deceased was employed in Aditya Birla Branch office of respondent No.5 and the respondent No.5 is also having its business in Bengaluru. Hence, the very contention of the petitioners cannot be accepted.
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7. The Trial Court, having considered the grounds urged in the application and also statement of objection and having extracted Sections 19 and 20 of C.P.C., the Trial Court comes to the conclusion that the claim is in respect of the movables of the deceased and the deceased was also gainfully employed in Bengaluru and respondent No.5-compnay is also carrying business in Bengaluru. Hence, issuance of succession certificate is in respect of death benefits of late Tulasi Kumar M. is not hit by Sections 19 and 20 of C.P.C. and therefore, the very contention that no territorial jurisdiction to adjudicate the same cannot be accepted and application filed has to be rejected.
8. Being aggrieved by the said order, this revision petition is filed. The counsel for the petitioners would vehemently contend that, when the petition is filed under Section 372 of the Act, the Trial Court ought to have taken note of Section 371 of the Act and the same has not been discussed in the order and instead, erroneously passed an order invoking Sections 19 and 20 of C.P.C. The counsel also brought to notice of this Court Section 371 of the Act with regard to the Court having jurisdiction to grant succession certificate. The counsel -7- NC: 2023:KHC:20643 CRP No. 222 of 2023 also, in support of his argument, relied upon the document of birth certificate of the deceased, who was born in Andhra Pradesh, copy of Aadhaar Card and copy of death certificate of the deceased and brought to notice of this Court that in the death certificate also, the permanent address is mentioned as Chittoor, Andhra Pradesh and these documents evidences the fact that he is the resident of Andhra Pradesh.
9. The counsel, in support of his argument, relied upon the judgment of the Apex Court in BHAGWAN DASS AND ANOTHER VS. KAMAL ABROL AND OTHERS reported in (2005) 11 SCC 66 and brought to notice of this Court Para No.10 with regard to the meaning of the word "ordinarily resident", wherein the Apex Court has observed that, before he can be said to be ordinarily residing at a particular place has to have an intention to stay at that place for a considerable length of time and it would not include a visit of a short or casual presence at that place. The counsel also brought to notice of this Court Para No.11, wherein also the Apex Court observed that the word "residence" is generally understood as referring to a person in connection with the place where he lives, and may be defined as one who resides in a place or one who -8- NC: 2023:KHC:20643 CRP No. 222 of 2023 dwells in a place for a considerable period of time as distinguished from one who merely works in a certain locality or comes casually for a visit and the place of work or the place of casual visit are different from the place of "residence".
10. The counsel also brought to notice of this Court the judgment of the Rajasthan High Court in the case of SURENDRA BHATIA VS. POONAM BHATIA & ORS. reported in 2005 SCC ONLINE RAJ 101 and brought to notice of this Court Para No.21, wherein the Court has discussed with regard to Section 371 of the Act and observed that Section 371 of the Act would clearly manifest that the District Judge within whose jurisdiction the deceased ordinarily resided would have jurisdiction to entertain and try the petition under Section 372 of the Act. The counsel also brought to notice of this Court Para No.25, wherein also observed that the plaintiff is entitled under law to get the relief sought for.
11. The counsel also relied upon the judgment of the Madhya Pradesh High Court in the case of SMT. CHANDRA KALA DOBLE & OTHERS VS. SHYAM RAO DOBLE AND OTHERS reported in (1998) SCC ONLINE MP 619 and -9- NC: 2023:KHC:20643 CRP No. 222 of 2023 brought to notice of this Court Page No.883, wherein the Court has discussed with regard to Section 371 of the Act with regard to Court having jurisdiction to hear and decide the matter.
12. The counsel also relied upon the judgment of the Allahabad High Court in the case of KM. RAKHI AND ANOTHER VS. 1ST ADDITIONAL DISTRICT JUDGE, FIROZABAD AND OTHERS reported in (1999) SCC ONLINE ALL 923 and brought to notice of this Court Para No.34, wherein also discussed with regard to the place of entertaining the petition and held that, if the deceased took the treatment in a place where he died, the same cannot constitute territorial jurisdiction.
13. Per contra, learned counsel for the respondents in his argument would vehemently contend that there is no dispute with regard to the fact that the deceased was a permanent resident of Chittoor Andhra Pradesh but, he was staying and working in Bengaluru and the very death certificate clearly discloses that he died in Bengaluru only. The fact that he was residing in Bengaluru is specifically mentioned in the petition itself that he was staying in a room and the petitioners
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NC: 2023:KHC:20643 CRP No. 222 of 2023 i.e., respondent herein were visiting the said place and cause of action is also specifically pleaded in the petition itself, when the respondents came to know about the fact that an attempt is made by the petitioners herein to fraudulently obtain the service benefits of the deceased. The counsel would submit that, while filing the petition, having taken note of the fact that deceased was working in Bengaluru and was an ordinarily resident of Bengaluru and the incident of death has also taken place in Bengaluru and the respondent No.5-Company is also within the jurisdiction of this Court and petition is filed before the Trial Court having jurisdiction. Hence, the very contention of the revision petitioners cannot be accepted.
14. Having heard the learned counsel for the petitioners and learned counsel for the respondents, the point that would arise for consideration of this Court is:
(1) Whether the Trial Court committed an error in dismissing the application filed under Order 7, Rule 11 (a) and (d) read with Section 151 of C.P.C. and whether it requires exercise of the revisional jurisdiction, in coming to the conclusion that
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NC: 2023:KHC:20643 CRP No. 222 of 2023 the order passed by the Trial Court suffers from infirmity?
15. Having heard the respective counsel, both the learned counsel for the revision petitioners and the respondents not dispute the fact that the deceased Tulasi Kumar M. was working in Bengaluru and also no dispute with regard to the fact that respondent No.5 is the employer of the deceased Tulasi Kumar M. It is also not in dispute that TulAsi Kumar M. died in Bengaluru and the place of death mentioned in the death certificate is also Bengaluru. No doubt, the document produced by the revision petitioners evidences the fact that the deceased Tulasi Kumar was born in Andhra Pradesh and in the Aaadhaar card also, it is shown as Andhra Pradesh but, the death certificate discloses the residential address as well as place of death as Bengaluru. The main contention of the learned counsel for the revision petitioners is that, there is no compliance of Section 371 of the Act and the Trial Court has not discussed the same and it has no jurisdiction to grant the succession certificate. Hence, ought not to have rejected the application.
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16. Having considered the submission, it is appropriate to extract Section 371 of the Act, which reads as hereunder:
"371. Court having jurisdiction to grant certificate.- The District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, if at that time he had no fixed place of residence, the District Judge, within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate under this Part."
17. Having read this proviso, it is very clear that the jurisdiction is based on the ordinarily residence of place at the time of death. The learned counsel for the petitioner relied upon the judgment of the Apex Court in BHAGWAN DASS's case, wherein the Apex Court, in Para No.10 of the judgment relied upon the judgment in UNION OF INDIA VS. DUDH NATH PRASAD reported in (2000) 2 SCC 20, wherein while discussing with regard to the word "resides" and "ordinarily resident" discussed that, it is clear that the person, before he can be said to be ordinarily residing at a particular place has to have an intention to stay at that place for a considerable length
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NC: 2023:KHC:20643 CRP No. 222 of 2023 of time and it would not include a visit of a short or casual presence at that place.
18. Having considered this principle, it is very clear that, he should have an intention to reside there. But, here is a case where the deceased was staying and working in Bengaluru and was gainfully employed in Bengaluru and respondent No.5- employer is having its establishment in Bengaluru and the respondent No.1 also pleaded in the petition itself that her marriage was solemnized in the year 2019 and prior to that, he was employed in Bengaluru and was having residence in Bengaluru and in the death certificate also, it is mentioned as Bengaluru and admittedly, he also died in Bengaluru. Hence, it is very clear that he was residing for a considerable length of time in Bengaluru and the judgment of the Apex Court is also very clear that one who resides in a place or one who dwells in a place for a considerable period of time as distinguished from one who merely works in a certain locality or comes casually for a visit and the place of work or the place of casual visit are different from the place of "residence". Hence, the very principle laid down in the judgment is not applicable to the case on hand.
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19. No doubt, the counsel also relied upon other judgments, wherein Allahabad High Court held with regard to the place where he died while taking the treatment cannot be the place, whereas the same is not the case in the case on hand. The other judgment of Rajasthan High Court and Madhya Pradesh High Court also will not come to the aid of the petitioners herein and the Court has to take note of the material on record and there is no dispute with regard to the fact that in the case on hand, the deceased was gainfully employed in Benglauru and the establishment in which the deceased was working is also having its office in Bengaluru.
20. It is also important to note that the very contention that Section 371 of the Act has not been complied cannot be accepted and the very Section 371 of the Act is clear that jurisdiction can be invoked on the basis of place where the deceased ordinarily resided at the time of his death. But, in the case on hand, he was residing in Bengaluru at the time of his death and Section 371 of the Act is clear that when a person had no fixed place of residence, the District Judge, within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate under this Part. Further,
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NC: 2023:KHC:20643 CRP No. 222 of 2023 the claim in this petition is with regard to death benefits of the deceased which is a movable property which is also claimed in Bengaluru and the respondent No.5 has to disburse the said amount. Hence, the said contention cannot be accepted.
21. The other contention of the learned counsel for the revision petitioners is that the Trial Court erroneously invoked Sections 19 and 20 of the C.P.C. and the same cannot be invoked. The said contention cannot be accepted and Sections 19 and 20 of C.P.C. is with respect to movable property. In the case on hand, the respondent No.5 was carrying on business in Bengaluru and the deceased was gainfully employed in Bengaluru and the very contention that Sections 19 and 20 of C.P.C. invoked by the Trial Court is erroneous cannot be accepted. Hence, I do not find any error in the order passed by the Trial Court with regard to dismissing the application filed under Order 7, Rule 11 (a) and (d) read with Section 151 of C.P.C.
22. It is also important to note that while considering the application filed under Order 7, Rule 11 (a) and (d) read with Section 151 of C.P.C., the Court has to look into the
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NC: 2023:KHC:20643 CRP No. 222 of 2023 averments made in the plaint and on perusal of the plaint averments, it is very clear that respondents have specifically pleaded in the petition itself with regard to the cause of action since, the very contention is that no cause of action has arisen before this Court and the said contention cannot be accepted since, in Para No.16 of the petition, it is categorically stated with regard to the fact that cause of action arose on 20.01.2022 when petitioners therein came to know that the respondents have fraudulently got released the entire death benefit of late Tulasi Kumar M. from the respondent No.5 depriving the rights and share of the petitioners over the same.
23. Hence, it is very clear that movable property which is held by the respondent No.5 was disbursed in Bengaluru and when the petitioners questioned the same, the respondent No.5-Company has directed the petitioners to obtain order from the Court on 28.03.2022. Hence, legal notice was issued to the petitioners and also the respondent No.5. When such clear pleading is made in the plaint with regard to the cause of action and apart from that, details are also given in the plaint with regard to the cause of action to claim the death benefits of the husband of the respondent No.1 herein. It is also settled law
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NC: 2023:KHC:20643 CRP No. 222 of 2023 that Court has to look into the averments of the plaint while considering the application filed under Order 7, Rule 11 (a) and
(d) read with Section 151 of C.P.C. and not the defence of the petitioners herein. On that ground also, I do not find any merit in the petition.
24. The counsel for the respondents also brought to notice of this Court that the Trial Court has imposed cost of Rs.5,000/- while rejecting the application. On perusal of the order impugned, it is seen that nothing is discussed with regard to imposing cost and no reason is assigned for imposing cost as to abuse of process etc., and mere filing of an application under Order 7, Rule 11 (a) and (d) read with Section 151 of C.P.C. before the Trial Court is not a ground to impose cost, unless the Court power is abused. Hence, it requires interference with regard to imposing of cost is concerned. Accordingly, I answer the point framed by this Court as 'negative'.
25. In view of the discussions made above, I pass the following:
ORDER
(i) The petition is dismissed. However, the cost imposed by the Trial Court is set aside.
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(ii) The Trial Court is directed to dispose of the petition within a time bound period of six months.
(iii) Both the parties and their respective counsels are directed to assist the Trial Court in disposal of the case within the stipulated time without seeking unnecessary adjournments.
Sd/-
JUDGE ST List No.: 1 Sl No.: 23