Karnataka High Court
Smt Umadevi vs Mohammedejaz Ahamed on 7 November, 2017
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF NOVEMBER, 2017
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION Nos.15450-15453/2017(GM-CPC)
BETWEEN:
1. SMT. UMADEVI,
WIFE OF LATE SHADAKSHARAPPA,
AGED ABOUT 45 YEARS,
2. SRI. BASAVESHA,
SON OF LATE SHADAKSHARAPPA,
AGED ABOUT 22 YEARS,
3. SRI VEERESHA,
SON OF LATE SHADAKSHARAPPA,
AGED ABOUT 26 YEARS,
ALL ARE RESIDING NEAR KALIKAMBA
TEMPLE, BEHIND MAHARANI'S
COLLEGE, KAMANABHAVI
BADAVANE, CHITRADURGA.
... PETITIONERS
(BY SRI GIRIDHAR S. V., ADVOCATE FOR
GIRIDHAR AND CO. ADVOCATE)
AND:
MOHAMMEDEJAZ AHAMED,
SON OF LATE MOHAMMED GHOUSE,
AGED ABOUT 62 YEARS,
FOOTWEAR BUSINESS,
R/O NO.1542, ASSAR MOHALLA,
2
CHITRADURGA 577501.
... RESPONDENT
(BY SRI M. A. HUMAYUN, ADVOCATE)
......
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDERS IMPUGNED DATED 25.2.2017
PASSED BY THE COURT OF I-ADDITIONAL CIVIL JUDGE
AND JMFC, CHITRADURGA, IN O.S.301/2010 AT
ANNEXURE-L AND M AND CONSEQUENTLY DISMISS THE
I.A.S'-1, 2, 3 & 4 AT ANNEXURE-C TO F RESPECTIVELY
FILED BY THE RESPONDENT HEREIN.
THESE WRIT PETITIONS COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
IN WP Nos.15450-15452/2017 The defendant Nos.1(a to c) in O.S.No.301/2010 on the file of the I Addl. Civil Judge (Jr.Dn.), Chitradurga, have filed W.P.Nos.15450-15452/2017 against the order dated 25.02.2017 allowing I.A.No.1 filed under Order XXII Rule 4 of Code of Civil Procedure, I.A.No.2 filed under Order XXII Rule 9(2) of Code of Civil Procedure and I.A.No.3 filed under Section 5 of the Limitation Act, filed by the plaintiff. 3
2. The original plaintiff Smt.Aliya Begum filed suit for declaration of title and mandatory injunction directing the first defendant to demolish the building built on the suit site at his own cost and risk and hand over the vacant possession of the suit schedule site to the plaintiff contending that the plaintiff is the lawful owner in possession and enjoyment of the suit schedule site which was granted to her by the office of the 2nd defendant/Chitradurga City Municipality, for a valid consideration under a registered sale certificate dated 24.06.1992, and on account of financial difficulties, the plaintiff could not construct a house on the suit schedule site till the end of the year 2009. The suit schedule site was vacant and clear without anybody's interruption by way of trespass. The plaintiff got prepared a plan and estimate to construct a residential house on the suit schedule site in the month of September 2009. At that time, the defendant No.1, knowingfully well that the plaintiff is an ailing person 4 having no strong support, all of a sudden trespassed on the suit schedule site and having no legal right or title over the same, constructed a house without her knowledge. Therefore, plaintiff filed suit for the relief sought for in respect of the suit schedule site.
3. The suit came to be filed on 02.08.2010 and after summons were returned on 02.09.2010 with an endorsement that the first defendant died on 26.12.2009, I.A.Nos.1, 2 and 3 came to be filed by the plaintiff for bringing on record the legal representatives of the deceased defendant No.1. The said applications were opposed by the defendants. The Trial Court considering the applications and the objections, by the impugned order dated 25.02.2017 allowed the applications. Challenging the said order WP Nos.15450- 15452/2017 are filed.
4. I have heard the learned counsel for the parties to the lis.
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5. Sri Giridhar.S.V., learned counsel for the petitioners pointed out that the very applications filed by the plaintiff to bring on record the legal representatives of the deceased defendant was not maintainable as the very suit was filed on 02.08.2010 against a person who died on 26.12.2009 itself. The suit itself was filed against a dead person. Therefore, question of bringing the legal representatives of deceased person would not arise. He further contended that Order XXII Rule 4 applies only to a person who died during pendency of the proceedings and not a person who died prior to filing of the suit. Therefore, the impugned order allowing I.A.Nos.1 to 3 is erroneous and liable to be quashed by allowing the writ petitions.
6. Per contra, Sri M.A.Humayun, learned counsel for the respondent/original plaintiff sought to justify the impugned order and contended that the suit was filed on 02.08.2010 under the presumption that the first 6 defendant was alive. Though the first defendant died on 26.12.2009, the plaintiff came to know about the same only on 02.09.2010. Therefore, filed applications to bring on record the legal representatives of the deceased first defendant. The same is in accordance with the provisions of Section 21 proviso of the Limitation Act, 1963. In support of his contention, learned counsel relied upon the judgment of the Hon'ble Supreme Court in the case of Karuppaswamy and others vs. C. Ramamurthy reported in AIR 1993 SC 2324. and sought to dismiss the writ petition.
7. Having heard the learned counsel for the parties, it is not in dispute that the plaintiff filed suit on 02.08.2010 for declaration and other reliefs. The Court issued summons to the defendants. The summons came to be returned on 02.09.2010 with an endorsement that the first defendant died on 26.12.2009. Thereafter, I.A.Nos.1,2 and 3 came to be 7 filed contending that the suit was filed against a dead person, out of ignorance and lack of knowledge of first defendant's death. Plaintiff came to know about the death of the defendant only after filing the suit. The persons sought to be brought on record are the wife and children of the deceased first defendant and they are residing in the house unauthorizedly built in the suit schedule site and therefore the right to sue survives against them and they are proper and necessary parties to the suit.
8. The Trial Court, considering the application and the objections, recorded a finding that the suit is one for declaration and mandatory injunction filed by the plaintiff and her power of attorney holder against the defendants. The suit summons issued against the defendant No.1 returned on 02.09.2010 with a shara 'first defendant dead'. Immediately on the next date of hearing, the plaintiff has filed I.A.Nos.1 to 3 to bring the 8 legal representatives of defendant No.1 on record by condoning the delay. The date of death of defendant No.1 as per the death certificate is 26.12.2009. The same came to the knowledge of the plaintiff only on 02.09.2010. Therefore, all the three applications are filed immediately after the knowledge of the death of first defendant. Therefore the contention of the legal representatives of the defendant No.1 that the suit itself is filed against a dead person, cannot be accepted. Accordingly, the Trial Court allowed the applications. The same is in accordance with law.
9. The Hon'ble Supreme Court, while considering the provisions of Section 21(1) proviso of the Limitation Act, in the case of Karuppaswamy and others vs. C. Ramamurthy reported in AIR 1993 SC 2324, at paragraphs 12, held as under:
"12. On the above analysis, we have no hesitation incoming to the conclusion that the 9 decision of the High Court was correct for the reasoning it advanced as well as for the effort we have made in refurbishing that view in the processual rehearing. As a result, this appeal fails and is hereby dismissed but without any order as to costs."
10. The legal representatives of the plaintiff have specifically stated in the application that the suit was filed against the deceased defendant out of ignorance and lack of knowledge of his death. They came to know about the death of the defendant only on 02.09.2010. Therefore, the applications may be allowed. The contention of the learned counsel for the petitioners that the suit was filed against a dead person cannot be accepted, since in the application it is specifically stated that the plaintiffs were not aware of the death of the defendant till 02.09.2010. The applications are filed immediately after coming to know of the death of the first defendant. Therefore, the Trial Court is justified in allowing the applications. The petitioners/legal 10 representatives of deceased defendant No.1 have not made out any ground to interfere with the impugned order allowing I.A.Nos.1 to 3 in exercise of powers under Article 227 of the Constitution of India.
Accordingly WP Nos.15450-15452/2017 are writ petitions are dismissed.
IN WP No.15453/2017
11. The defendant Nos.1(a to c) in O.S.No.301/2010 on the file of the I Addl. Civil Judge (Jr.Dn.), Chitradurga, have preferred the above writ petition against the order dated 25.02.2017 allowing the plaintiff's I.A.No.4 filed under Order XXII Rule 3(1) of Code of Civil Procedure.
12. The original plaintiff filed suit for declaration and permanent injunction in respect of the suit schedule site, raising various contentions. The suit was filed on 02.08.2010 and the suit summons issued to the first 11 defendant returned on 02.09.2010 with an endorsement that the first defendant died on 26.12.2009. Thereafter, the applications filed by the plaintiff to bring on record the legal representatives of the deceased first defendant were allowed by the Trial Court by order dated 25.02.2017. During pendency of the suit, the original plaintiff also died on 18.01.2011. Therefore, the brother of the plaintiff, through his special power of attorney holder, filed an application under Order XXII Rule 3(1) of Code of Civil Procedure to come on record as the legal representative of the deceased plaintiff. The said application was opposed by the legal representatives of the first defendant and filed objections disputing the very relationship of applicant with the deceased plaintiff.
13. The Trial Court, considering the application and the objections, by the impugned order dated 25.02.2017 12 allowed the application. Hence, defendant Nos.1(a to c) filed W.P.No.15453/2017 before this Court.
14. I have heard the learned counsel for the parties to the lis.
15. Sri Giridhar.S.V., the learned counsel for the petitioners/ defendant Nos.1(a to c) contended that the very application filed by the legal representative of the plaintiff was opposed by the present petitioners specifically contending that the averments made in the application are not maintainable and the applicant who wanted to come on record as the legal representative of the deceased plaintiff was not the legal representative of the plaintiff and therefore, the application is not maintainable. The Trial Court, without holding enquiry as contemplated under Order XXII Rule 5 of Code of Civil Procedure, has erroneously allowed the application and therefore, sought to quash the impugned order passed by the Trial Court.
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16. Per contra, Sri M.A.Humayun, learned counsel for the respondent/ plaintiff sought to justify the impugned order and contended that the applicant is the only legal representative who is none other than the brother of the deceased plaintiff and therefore, sought to dismiss the writ petition.
17. Having heard the learned counsel for the parties, it is not in dispute that the suit is filed by the original plaintiff for declaration and permanent injunction in respect of the suit schedule site. It is also not in dispute that during pendency of the suit, the plaintiff died on 18.01.2011. The application to come on record as the legal representative of the deceased plaintiff came to be filed by the brother of the deceased plaintiff contending that he is the only legal representative of the plaintiff and the plaintiff had no issues and her husband died long back. The same is disputed by the petitioners herein contending that the applicant is not 14 the legal representative of the deceased plaintiff and therefore, question of allowing him to come on record does not arise at all. When there is a dispute with regard as to who is the legal representative of a deceased plaintiff, the Trial Court ought to have held an enquiry as contemplated under Order XXII Rule 5 of Code of Civil Procedure. The said procedure has not been followed by the Trial Court. The provisions of Order XXII Rule 5 of Code of Civil Procedure reads as under:
"5. Determination of question as to legal representative.-
Whether a question arises as to whether any person is or is not the legal representative of a decreased plaintiff or a deceased 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 15 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".
18. This Court considering the provisions of Order XXII Rule 5 of Code of Civil Procedure, in the case of Manjula vs. Fakkirappa reported in (2016)1 AKR 471 held as under:
8. It is worthwhile, to extract order 22 Rule 5 of Code of Civil Procedure, which reads as under:
"5. Determination of question as to legal representative.-
Whether a question arises as to whether any person is or is not the legal representative of a decreased plaintiff or a deceased defendant, such question shall be determined by the Court:
Provided that where such question arises before an Appellate Court, that Court may, before 16 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".
9. A plain reading of the said provision makes it clear that, it is mandatory on the part of the Trial Court to hold an enquiry when the application filed under Order 22 Rule 3 of Code of Civil Procedure by any person which is disputed by the other side in the pending suit between the parties.
10. Admittedly, in the present case, the defendant is disputing the very relationship of the respondent- applicant with the deceased plaintiff who wants to come on record under Order 22 Rule 3 of Code of Civil Procedure, the said exercise has not been done by the Trial Court. Therefore, the appellate Court considering the entire material on record has recorded a categorical finding that order 22 Rule 5 of Code of Civil Procedure deals with the determination question has to the legal representative. The said provision states that "Where a question arises as to whether any person 17 is or is not the legal representative of a deceased plaintiff or the deceased defendant, such question shall be determined by the Court". A reading of Section 22 Rule 5 of Code of Civil Procedure, it is crystal clear that the Court has to determine the status of legal representative of the deceased parties to the suit by holding enquiry. In the present case, the appellant claiming that he is the legal representative of the deceased plaintiff and respondent-defendant denied the same. Under these circumstances, enquiry is required to determine the status of the appellant as the legal representative of the deceased plaintiff. The learned trial Judge has lost the sight of the provisions of Order 22 Rule 5 of Code of Civil Procedure. When the appellant sought to come on record as the legal representative of the deceased plaintiff on the basis of the Will and gift and the respondent has opposed the said claim of the appellant, the Trial Court ought to have hold an enquiry on the said application to determine the status of the appellant and the Trial Court without holding an enquiry, rejected the L.R. application filed by the appellant and dismissed the suit as abated. Therefore, he set aside the order passed by 18 the Trial Court with a direction to the Trial Court to re-open the case and hold enquiry on the application filed by the respondent under Order 22 Rule 3 r/w Section 151 of CPC.
19. Admittedly, in the present case, the Trial Court has proceeded to allow the application mainly on the ground that the survival certificate dated 13.03.2013, prima-facie, goes to show that the applicant is the sole legal representative of the deceased plaintiff. When the same is disputed by defendant Nos.1(a to c), the Trial Court ought to have conducted enquiry as contemplated under Order XXII Rule 5 of Code of Civil Procedure. The same has not been done. On that ground alone, the impugned order cannot be sustained.
20. In view of the aforesaid reasons, WP No. 15453/2017 is allowed. The impugned order dated 25.02.2017 made in O.S.No.301/2010 on the file of the I Addl. Civil Judge and JMFC, Chitradurga, allowing I.A.No.4 filed by the applicant under Order XXII Rule 19 3(1) of Code of Civil Procedure, is quashed. The matter is remanded to the Trial Court with a direction to consider I.A.No.4 afresh, after holding detailed enquiry as contemplated under Order XXII Rule 5 of Code of Civil Procedure and pass orders, in accordance with law.
Sd/-
JUDGE kcm