Karnataka High Court
Gurubai W/O Shivasharanappa Malipatil ... vs The Govt. Of Karnataka And Ors on 7 September, 2016
Author: B.Veerappa
Bench: B.Veerappa
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R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF JULY, 2016
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
CIVIL REVISION PETITION NO. 200015/2015
BETWEEN:
Gurubai
W/o Shivasharanappa Malipatil
Since deceased by LR.
(Plaintiff before the trial court)
1. Parvathibai
W/o Shankarao Deshmukh
Age: 55 years, Occ: Agriculture & Household
R/o Nirgudi Village, Tq: Aland
Dist: Kalaburagi - 585 302.
... Petitioner
(By Sri Ashok S. Kinagi, Advocate)
AND:
1. The Govt. of Karnataka
Through Deputy Commissioner
Kalaburagi, being District
Representative of the Govt.
585 102.
2. The Govt. Primary School
Through Head Master representing the
School, R/o Aland, Dist: Kalaburagi
Kannada & Urdu Medium - 585 302
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3. The Deputy Director of Public Instructions
Kalaburagi, representing the Education
Department, Kalaburagi - 585 102.
... Respondents
(By Sri A. Syed Habeeb, AGA)
This CRP is filed under Section 115 of CPC, praying to
allow by setting impugned order dated 15.04.2015 passed in
O.S. No. 71/2012 by the senior Civil Judge, Aland and
consequently allow I.A.No. V and VI and also recall the order
of dismissal as abated.
This petition coming on for Admission this day, the
Court made the following:
ORDER
This is plaintiff's revision petition against the order dated 15.04.2015 on I.A.Nos.V and VI made in O.S.No.71/2012, on the file of Civil Judge *(Sr.Dn.) at Aland, dismissing the applications under Section 5 of the Limitation Act and under Order 22 Rule 3 of Code of Civil Procedure filed by the plaintiffs.
2. The plaintiff had filed O.S.No.71/2012 against the defendants/respondents for declaration of * Corrected vide order dated 07.09.2016 3 title in respect of suit schedule property bearing Sy.No.219/1, measuring 28 acres 34 guntas, situated at Aland, Kalaburgi district and also for permanent injunction from putting any new construction over 'ABCD' red colour portion shown in the plaint's sketch which is part and parcel of the suit property as mentioned in Schedule 'A' of the plaint. The defendants have filed the written statement denying the entire plaint averments.
3. During the pendency of the original proceedings, the sole plaintiff died. Therefore, the applicant filed an application under Order 22 Rule 3 of Code of Civil Procedure and also filed an application under Section 5 of the Limitation Act to condone the delay in filing the LRs. application on the basis of the registered Will dated 05.08.2002. The said applications were resisted by the defendants/respondents by filing the objections separately.
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4. The learned Civil Judge after hearing both the parties, by the impugned order dated 15.04.2015 has dismissed the applications mainly on the ground that the Will has to be proved and get the letter of probhet from the competent authority and mere filing of application, she cannot be the legal heir to the property under litigation. Hence, present civil revision petition is filed.
5. I have heard the learned counsel for the parties to the lis.
6. Sri Ashok S. Kinagi, the learned counsel for the petitioner contended that the impugned orders passed by the Trial Court is contrary to the provisions of Order 22 Rule 5 of Code of Civil Procedure. When the applicant has filed an application under Order 22 Rule 3 of Code of Civil Procedure along with the application under Section 5 of the Limitation Act to condone the delay in filing the application on the basis of the 5 registered Will and the same was disputed by the defendants/respondents, it is the duty of the Trial Court to hold an enquiry as contemplated under Order 22 Rule 5 of Code of Civil Procedure and the same has not been done. Therefore, he sought to set aside the impugned judgment and decree passed by the Trial Court.
7. Per contra, Sri Syed Habeeb, the learned Additional Government Advocate has sought to justify the order passed by the Trial Court but he is unable to dispute the fact that the Trial Court has proceeded to dismiss the applications without holding any enquiry as contemplated under Order 22 Rule 5 of Code of Civil Procedure.
8. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record. 6
9. It is an undisputed fact that the original plaintiff has filed O.S.No.71/2012 for declaration and permanent injunction in respect of the suit schedule property. It is also not in dispute that during the pendency of the original suit, the sole plaintiff died and the applicant has filed an application under Order 22 Rule 3 of Code of Civil Procedure along with the application under Section 5 of the Limitation Act to come on record as the legal representative of the deceased plaintiff on the basis of the registered Will. The relationship of the original plaintiff and the applicant has been disputed by the defendants/respondents and the Trial Court has proceeded to dismiss the applications without considering the mandatory procedure as contemplated under the provisions of Order 22 Rule 5 Code of Civil Procedure, which reads as under:
"Determination of question as to legal representative.-7
Whether a question arises as to whether any person is or is not the legal representative of a deceased 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 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."
10. 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 on the application filed under Order 22 Rule 3 of Code of Civil Procedure and the application filed under Section 5 of the Limitation Act, by any persons who is disputed by the other side, in the pending suit between the parties.
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11. In the present case, the defendants have disputed the very relationship of the original plaintiff with the applicant, who wants to come on record under Order 22 Rule 3 of Code of Civil Procedure on the basis of the registered Will. The mandatory providing Order 22 Rule 5 of Code of Civil Procedure has not been followed by the Trial Court.
12. The Hon'ble Apex Court while considering the provisions of Order 22 Rule 5 of Code of Civil Procedure in the case of Kanthiya Singh Santok Singh and Others v. Kartar Singh reported in (2009) 5 SCC 155 has held as under:
"19. Thus considering the ambiguous position regarding the status of the appellants relating to their status as tenants, it was necessary for the High Court to remit the matter to the Trial Court for a proper determination of the factual aspects whether the appellants were in fact carrying on business with late Santok Singh at the time of 9 his death by taking evidence and thereafter, come to a finding whether the appellants shall brought on record in second appeal as the legal representative of the Santok Singh."
13. The Hon'ble Supreme Court while considering the provisions of Rule 4 and 5 of Order 22 of Code of Civil Procedure in the case of Jaladi Suguna (deceased through LRs. v. Satya Sai Central Trust and others reported in (2008) 8 SCC 521 has held as under:
16. The provisions of Rules 4 and 5 of Order 22 are mandatory. When a respondent in an appeal dies, the Court cannot simply say that it will hear all rival claimants to the estate of the deceased respondent and proceed to dispose of the appeal. Nor can it implead all persons claiming to be legal representatives, as parties to the appeal without deciding who will represent the estate of the deceased, and proceed to hear the appeal on merits. The court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits.
The Code clearly provides that where a question arises as to whether any person is or is not the legal representative of a deceased respondent, such question shall be determined by the Court. The Code also provides that where 10 one of the respondents dies and the right to sue does not survive against the surviving respondents, the Court shall, on an application made in that behalf, cause the legal representatives of the deceased respondent to be made parties, and then proceed with the case. Though Rule 5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, Rule 4 read with Rule 11 makes it clear that the appeal can be heard only after the legal representatives are brought on record.
19. We, accordingly, allow this appeal and set aside the judgment dated 19-9-2006, restore the appeal to the file of the High Court, with the following directions:
I The High Court shall first decide the dispute between the husband of the deceased on the one hand, and her nieces and nephews on the other, after considering the evidence and findings dated 28-11-2005 recorded by the Trial Court and hearing the rival claimants.
II After such determination, the person(s) determined to be person(s) entitled to represent the estate of the deceased shall be brought on record as the legal representatives of the deceased.
III Thereafter, the appeal shall be heard on merits and disposed of in accordance with law.11
14. The Hon'ble Supreme Court while considering the provisions of Section 2(11) and Order 22 Rule 5 of Code of Civil Procedure in the case of Suresh Kumar Bansal vs. Krishna Bansal and Another reported in (2010) 2 Supreme Court Cases 162 has held as under:
"19. The Code of Civil Procedure enjoins various provisions only for the purpose of avoiding multiplicity of proceedings and for adjudicating of related disputes in the same proceedings, the parties cannot be driven to different Courts or to institute different proceedings touching on different facets of the same major issue. Such a course of action will result in conflicting judgments and instead of resolving the disputes, they would end up in creation of confusion and conflict. '
20. It is now well settled that determination of the question as to who is the legal representatives of the deceased plaintiff or defendant under Order XXII Rule 5 of the Code of Civil Procedure is only for the 12 purposes of bringing legal representatives on record for the conducting of those legal proceedings only and does not operate as res judicata and the inter se dispute between the rival legal representatives has to be independently tried and decided in probate proceedings. If this is allowed to be carried on for a decision of an eviction suit or other allied suits, the suits would be delayed, by which only the tenants will be benefited.
21. In order to shorten the litigation and to consider the rival claims of the parties, in our view, the proper course to follow is to bring all the heirs and legal representatives of the deceased plaintiff on record including the legal representatives who are claiming on the basis of the Will of the deceased plaintiff so that all the legal representatives namely, the appellant and the natural heirs and legal representatives of the deceased plaintiff can represent the estate of the deceased for the ultimate benefit of the real legal representatives. If this process is followed, 13 this would also avoid delay in disposal of the suit.
22. In view of our discussions made hereinabove, we are, therefore, of the view that the High Court as well as the trial Court were not at all justified in rejecting the application for impleadment filed at the instance of the appellant based on the alleged Will of the deceased plaintiff at this stage of the proceedings.
23. Before parting with this judgment, it is necessary to consider the decision of this Court in the case of Jalai Suguna (deceased) through L.Rs. v. Satya Sai Central Trust and Others, [(2008) 8 SCC 521] cited by the learned senior counsel for the appellant. In Jalai Suguna (supra), this Court held that the intestate heir (husband) and the testamentary legatees (nieces and nephews), seeking impleadment as the heirs of the deceased respondent in an appeal have to be brought on record before the Court can proceed further in the appeal. Furthermore, in that decision it was also held that a legatee under a Will, 14 who intends to represent the estate of the deceased testator, being an intermeddler with the estate of the deceased testator, will be a legal representative.
24. In view of the aforesaid discussions and in view of the decision reported in Jalai Suguna (supra), we are also of the view that in an eviction proceeding, when a legatee under a Will intends to represent the interest of the estate of the deceased testator, he will be a legal representative within the meaning of Section 2(11) of Code of Civil Procedure, for which it is not necessary in an eviction suit to decide whether the Will on the basis of which substitution is sought for, is a suspicious one or that the parties must send the case back to the probate Court for a decision whether the Will was genuine or not.
15. In view of the aforesaid reasons, the revision petition is allowed. The impugned orders passed by the Trial Court dated 15.04.2015 on I.A.Nos. V and VI made in O.S.No.71/2012, on the file of the Civil Judge 15 *(Sr.Dn.) at Aland is set aside. The matter is remanded to the Trial Court for fresh consideration of the said applications (I.A.Nos.V and VI) after following the procedure as contemplated under Order 22 Rule 5 of Code of Civil Procedure and in the light of the dictums of the Hon'ble Supreme Court stated supra and pass orders in accordance with law.
Sd/-
JUDGE Srt * Corrected vide order dated 07.09.2016