Karnataka High Court
Sri. Mohan Appaji Chigare vs Smt. Sushila Shivaram Patil on 20 February, 2023
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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WP No. 107547 of 2017
C/W WP No. 107548 of 2017,
WP No. 107549 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
WRIT PETITION NO.107547 OF 2017 (GM-CPC)
C/W
WRIT PETITION NO. 107548 OF 2017
WRIT PETITION NO. 107549 OF 2017
IN W.P.NO.107547/2017
BETWEEN:
1. SRI. MOHAN APPAJI CHIGARE,
AGE: 62 YEARS, OCC: BUSINESS,
R/O: KORE GALLI,
SHAHAPUR, BELAGAVI,
TAL and DIST: BELAGAVI.
2. SRI. RAJU APPAJI CHIGARE
AGE: 50 YEARS, OCC: BUSINESS,
Digitally
signed by R/O: KORE GALLI,
VINAYAKA B
V SHAHAPUR, BELAGAVI,
Location:
VINAYAKA High Court of TAL and DIST: BELAGAVI.
BV Karnataka,
Dharwad
Date:
...PETITIONERS
2023.02.25
13:23:58 (BY SRI D.RAVIKUMAR GOKAKAKAR, ADVOCATE)
+0530
AND:
1. SMT. SUSHILA SHIVARAM PATIL
AGE: 77 YEARS, OCC: NIL,
R/O: 4TH CROSS, VIDYANAGAR,
ANGOL, BELAGAVI,
TAL and DIST: BELAGAVI.
2. SRI.ARUN S/O MARUTIRAO DHAKALUCHE
AGE: 55 YEARS, OCC: BUSINESS,
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WP No. 107547 of 2017
C/W WP No. 107548 of 2017,
WP No. 107549 of 2017
R/O: 4TH CROSS, VIDYANAGAR, ANGOL,
BELAGAVI, TAL and DIST: BELAGAVI.
3. SRI VINAYAK MARUTIRAO DHAKALUCHE
AGE: 50 YEARS, OCC: BUSINESS,
R/O: 4TH CROSS, VIDYANAGAR, BELAGAVI,
TAL and DIST: BELAGAVI.
4. SMT.SHOBHA W/O SUBHASH MORE
AGE: 48 YEARS, OCC: HOUSEWIFE,
R/O: 4TH CROSS,
VIDYANAGAR, BELAGAVI,
TAL and DIST: BELAGAVI.
5. SRI PRAKASH S/O MARUTIRAO DHAKALUCHE
AGE: 48 YEARS, OCC: BUSINESS,
R/O: 4TH CROSS,
VIDYANAGAR, BELAGAVI,
TAL and DIST: BELAGAVI.
6. SMT.RENUKA W/O SHANTARAM CHOUGULE
AGE: 46 YEARS, OCC: HOUSEHOILD,
R/O: 4TH CROSS,
VIDYANAGAR, BELAGAVI,
TAL and DIST: BELAGAVI.
7. SRI SATISH S/O MARUTIRAO DHAKALUCHE
SINCE DECEASED BY HIS LRS.
7(A) SMT.NEETA W/O SATISH DHAKALUCHE,
AGED 40 YEARS, OCC: SERVICE.
7(B) KU.SHRUSTI D/O SATISH DHAKALUCHE,
AGED 21 YEARS, OCC: STUDENT.
7(C) KU.SHREEYASH S/O SATISH DHAKALUCHE,
AGED 15 YEARS, OCC: STUDENT.
(R7(C) IS MINOR REPRESENTED BY
NATURAL MOTHER R7(A).
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WP No. 107547 of 2017
C/W WP No. 107548 of 2017,
WP No. 107549 of 2017
ALL R/O: H.NO.741, VIDYANAGAR,
ANGOL, BELAGAVI,
TAL and DIST: BELAGAVI.
8. SMT.VIJAYA W/O ASHOK CHIGARE
AGE: 49 YEARS,
OCC: HOUSEHOLD,
R/O: KORE GALLI,
SHAHAPUR, BELAGAVI,
TAL and DIST: BELAGAVI.
9. SRI MANJUNATH S/O ASHOK CHIGARE
AGE: 25 YEARS, OCC: SERVICE,
R/O: KORE GALLI,
SHAHAPUR, BELAGAVI,
TAL and DIST: BELAGAVI.
10. MISS SNEHA D/O ASHOK CHIGARE
AGE: 23 YEARS, OCC: SERVICE,
R/O: KORE GALLI,
SHAHAPUR, BELAGAVI,
TAL and DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. MRUTYUNJAYA TATA BANGI, ADVOCATE FOR R1 TO
R6, R7 (A) AND (B); R2 IS GPA HOLDER OF R1, R4 AND R6;
R7(C) IS MINOR R/BY R7(A); R8 TO R10 NOT CLAIMED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO:-
A) ISSUE A WRIT, ORDER OR DIRECTION IN THE NATURE OF
CERTIORARI QUASHING THE ORDER AT ANNEXURE-A i.e.
ORDER DATED 11.07.2017 PASSED ON APPLICATION UNDER
ORDER XXII RULE 9 OF THE CODE OF CIVIL PROCEDURE IN
O.S.NO.2/1992 PASSED BY THE III ADDITIONAL SENIOR CIVIL
JUDGE, BELAGAVI.
B) REJECT THE APPLICATION UNDER ORDER XXII RULE 9 OF
THE CODE OF CIVIL PROCEDURE IN O.S.NO.2/1992, FILED THE
RESPONDENT NOS. 1 TO 7.
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WP No. 107547 of 2017
C/W WP No. 107548 of 2017,
WP No. 107549 of 2017
IN W.P.NO.107548/2017
BETWEEN:
1. SRI. MOHAN APPAJI CHIGARE,
AGE: 62 YEARS, OCC: BUSINESS,
R/O: KORE GALLI,
SHAHAPUR, BELAGAVI,
TAL and DIST: BELAGAVI.
2. SRI. RAJU APPAJI CHIGARE
AGE: 50 YEARS, OCC: BUSINESS,
R/O: KORE GALLI,
SHAHAPUR, BELAGAVI,
TAL and DIST: BELAGAVI.
...PETITIONERS
(BY SRI D.RAVIKUMAR GOKAKAKAR, ADVOCATE)
AND:
1. SMT. SUSHILA SHIVARAM PATIL,
AGE: 77 YEARS, OCC: NIL,
R/O: 4TH CROSS, VIDYANAGAR,
ANGOL, BELAGAVI,
TAL and DIST: BELAGAVI.
2. SRI. ARUN S/O MARUTIRAO DHAKALUCHE,
AGE: 55 YEARS, OCC: BUSINESS,
R/O: 4TH CROSS, VIDYANAGAR, ANGOL,
BELAGAVI, TAL and DIST: BELAGAVI.
3. SRI VINAYAK MARUTIRAO DHAKALUCHE
AGE: 50 YEARS, OCC: BUSINESS,
R/O: 4TH CROSS, VIDYANAGAR, BELAGAVI,
TAL and DIST: BELAGAVI.
4. SMT.SHOBHA W/O SUBHASH MORE
AGE: 48 YEARS, OCC: HOUSEWIFE,
R/O: 4TH CROSS,
VIDYANAGAR, BELAGAVI,
TAL and DIST: BELAGAVI.
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WP No. 107547 of 2017
C/W WP No. 107548 of 2017,
WP No. 107549 of 2017
5. SRI PRAKASH S/O MARUTIRAO DHAKALUCHE
AGE: 48 YEARS, OCC: BUSINESS,
R/O: 4TH CROSS, VIDYANAGAR, BELAGAVI,
TAL and DIST: BELAGAVI.
6. SMT.RENUKA @ REKHA,
W/O SHANTARAM CHOUGULE,
AGE: 46 YEARS, OCC: HOUSEHOILD,
R/O: 4TH CROSS, VIDYANAGAR, BELAGAVI,
TAL and DIST: BELAGAVI.
7. SRI SATISH S/O MARUTIRAO DHAKALUCHE
AGE: 42 YEARS, OCC: SERVICE,
R/O: 4TH CROSS, VIDYANAGAR,
TAL and DIST: BELAGAVI.
8. SMT.VIJAYA W/O ASHOK CHIGARE
AGE: 49 YEARS, OCC: HOUSEHOLD,
R/O: KORE GALLI, SHAHAPUR, BELAGAVI,
TAL and DIST: BELAGAVI.
9. SRI MANJUNATH S/O ASHOK CHIGARE
AGE: 25 YEARS, OCC: SERVICE,
R/O: KORE GALLI,
SHAHAPUR, BELAGAVI,
TAL and DIST: BELAGAVI.
10. MISS SNEHA D/O ASHOK CHIGARE
AGE: 23 YEARS, OCC: SERVICE,
R/O: KORE GALLI,
SHAHAPUR, BELAGAVI,
TAL and DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. MRUTYUNJAYA TATA BANGI, ADV. FOR R1 TO R7;
R2 IS GPA HOLDER OF R1, R4 AND R6;
R8 TO R10 NOT CLAIMED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO:-
A) ISSUE A WRIT, ORDER OR DIRECTION IN THE NATURE OF
CERTIORARI QUASHING THE ORDER AT ANNEXURE-A i.e.
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WP No. 107547 of 2017
C/W WP No. 107548 of 2017,
WP No. 107549 of 2017
ORDER DATED 11.07.2017 PASSED ON APPLICATION UNDER
ORDER XXII RULE 3 OF THE CODE OF CIVIL PROCEDURE IN
O.S.NO.2/1992 PASSED BY THE III ADDITIONAL SENIOR CIVIL
JUDGE, BELAGAVI.
B) REJECT THE APPLICATION UNDER ORDER XXII RULE 3 OF
THE CODE OF CIVIL PROCEDURE IN O.S.NO.2/1992, FILED THE
RESPONDENT NOS. 1 TO 7.
IN W.P.NO.107549/2017
BETWEEN:
1. SRI. MOHAN APPAJI CHIGARE,
AGE: 62 YEARS, OCC: BUSINESS,
R/O: KORE GALLI,
SHAHAPUR, BELAGAVI,
TAL and DIST: BELAGAVI.
2. SRI. RAJU APPAJI CHIGARE,
AGE: 50 YEARS, OCC: BUSINESS,
R/O: KORE GALLI,
SHAHAPUR, BELAGAVI,
TAL and DIST: BELAGAVI.
...PETITIONERS
(BY SRI D.RAVIKUMAR GOKAKAKAR, ADVOCATE)
AND:
1. SMT. SUSHILA SHIVARAM PATIL,
AGE: 77 YEARS, OCC: NIL,
R/O: 4TH CROSS, VIDYANAGAR,
ANGOL, BELAGAVI,
TAL and DIST: BELAGAVI.
2. SRI. ARUN S/O MARUTIRAO DHAKALUCHE,
AGE: 55 YEARS, OCC: BUSINESS,
R/O: 4TH CROSS, VIDYANAGAR, ANGOL,
BELAGAVI, TAL and DIST: BELAGAVI.
3. SRI VINAYAK MARUTIRAO DHAKALUCHE
AGE: 50 YEARS, OCC: BUSINESS,
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WP No. 107547 of 2017
C/W WP No. 107548 of 2017,
WP No. 107549 of 2017
R/O: 4TH CROSS, VIDYANAGAR, BELAGAVI,
TAL and DIST: BELAGAVI.
4. SMT.SHOBHA W/O SUBHASH MORE
AGE: 48 YEARS, OCC: HOUSEWIFE,
R/O: 4TH CROSS,
VIDYANAGAR, BELAGAVI,
TAL and DIST: BELAGAVI.
5. SRI PRAKASH S/O MARUTIRAO DHAKALUCHE
AGE: 48 YEARS, OCC: BUSINESS,
R/O: 4TH CROSS,
VIDYANAGAR, BELAGAVI,
TAL and DIST: BELAGAVI.
6. SMT.RENUKA,
W/O SHANTARAM CHOUGULE,
AGE: 46 YEARS, OCC: HOUSEHOILD,
R/O: 4TH CROSS,
VIDYANAGAR, BELAGAVI,
TAL and DIST: BELAGAVI.
7. SRI SATISH S/O MARUTIRAO DHAKALUCHE
AGE: 42 YEARS, OCC: SERVICE,
R/O: 4TH CROSS, VIDYANAGAR,
TAL and DIST: BELAGAVI.
8. SMT.VIJAYA W/O ASHOK CHIGARE
AGE: 49 YEARS, OCC: HOUSEHOLD,
R/O: KORE GALLI,
SHAHAPUR, BELAGAVI,
TAL and DIST: BELAGAVI.
9. SRI MANJUNATH S/O ASHOK CHIGARE
AGE: 25 YEARS, OCC: SERVICE,
R/O: KORE GALLI,
SHAHAPUR, BELAGAVI,
TAL and DIST: BELAGAVI.
10. MISS SNEHA D/O ASHOK CHIGARE
AGE: 23 YEARS, OCC: SERVICE,
R/O: KORE GALLI,
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WP No. 107547 of 2017
C/W WP No. 107548 of 2017,
WP No. 107549 of 2017
SHAHAPUR, BELAGAVI,
TAL and DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. MRUTYUNJAYA TATA BANGI, ADV. FOR R1 TO R7;
R2 IS GPA HOLDER OF R1, R4 AND R6;
R8 TO R10 NOT CLAIMED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO:-
A) ISSUE A WRIT, ORDER OR DIRECTION IN THE NATURE OF
CERTIORARI QUASHING THE ORDER AT ANNEXURE-A i.e.
ORDER DATED 11.07.2017 PASSED ON APPLICATION UNDER
SECTION 5 OF THE LIMITATION ACT, CONDONING THE DELAY
CAUSED IN FILING THE APPLICATION TO SET ASIDE THE
ABATEMENT CAUSED, IN O.S.NO.2/1992, PASSED BY THE III
ADDITIONAL SENIOR CIVIL JUDGE, BELAGAVI.
B) REJECT THE APPLICATION UNDER SECTION 5 OF THE
LIMITATION ACT, FILED BY RESPONDENT NOS. 1 TO 7.
THESE PETITIONS COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
These petitions arise out of O.S.No.2/1992 on the file of III Addl.Senior Civil Judge, Belagavi.
2. Heard learned counsel for the petitioners and learned counsel for respondents and perused the material on record.
3. The material on record discloses that the suit in O.S.No.2/1992 out of which the present petition arises was instituted by Maruti Devappa Dhakaluche, the original plaintiff -9- WP No. 107547 of 2017 C/W WP No. 107548 of 2017, WP No. 107549 of 2017 in the year 1992 and numbered as O.S.No.2/1992. In the said suit, the petitioners herein are arrayed as defendant No.1 and defendant No.3 while respondents No.1 to 7 are the legal representatives of the deceased plaintiff. Respondents No.8, 9 and 10 are the legal representatives of the deceased defendant No.2 in the suit.
4. The said suit which commenced which was instituted in the year 1992 ultimately culminated before this Court in RSA No.100702/2014 preferred by the petitioners herein and the same was remitted back to the trial Court for reconsideration of the applications filed by respondents No.1 to 7, the legal representatives of the deceased plaintiff for permission to come on record to, set aside abatement and for condonation of delay in seeking setting aside the abatement of the suit in respect of the deceased plaintiff. Subsequently, the trial Court allowed the said applications vide order dated 17.10.2016 which was challenged before this Court in W.P.No.108735/2016 c/w W.P.Nos.108736 and 108734 of 2016 filed by the present petitioners. By final order dated 10.03.2017, this Court once again set aside the orders passed on the said applications filed by respondents No.1 to 7/legal
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WP No. 107547 of 2017C/W WP No. 107548 of 2017, WP No. 107549 of 2017 representatives of the original plaintiff and remitted back to the trial Court for reconsideration afresh. Subsequent to the matter being remanded by this Court in W.P.No.108735/2016 c/w W.P.Nos.108736 and 108734 of 2016, the trial Court proceeded to pass the impugned order allowing all the three applications and thereby permitted respondents No.1 to 7 to come on record as legal representatives of the deceased plaintiff.
Aggrieved by the impugned common order passed on all the applications, the petitioners are before this Court by way of present petition.
5. In addition to reiterating the various contentions urged in the petition, learned counsel for the petitioners submits that in the light of the specific direction issued by this Court in W.P.No.108735/2016 c/w W.P.Nos.108736 and 108734 of 2016 directing the trial Court to record evidence on the application filed by respondents No.1 to 7 under Section 151 of the Limitation Act seeking condonation of delay, trial Court clearly erred in allowing the said application without recording oral and documentary evidence. It is therefore submitted that the impugned order passed by the trial Court deserves to be set aside.
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WP No. 107547 of 2017C/W WP No. 107548 of 2017, WP No. 107549 of 2017
6. Per contra, learned counsel for respondents No.1 to 7 submits that the direction issued by this Court was to the limited extent permitting the parties to tender evidence which cannot be construed or treated as actual recording of oral and documentary evidence and so long as the trial Court has considered the entire material evidence on record and come to the conclusion that the valid and sufficient grounds had been made by respondents No.1 to 7 to allow the applications, impugned order passed by the trial Court does not warrant interference by this Court in the present petition and the same is liable to be dismissed.
7. I have given my anxious consideration to the rival submissions.
8. As rightly contended by the learned counsel for the respondents, in the light of the undisputed fact that the suit is pending for more than thirty-one years as on today, the trial Court has come to the correct conclusion that the applications deserve to be allowed by holding as under:
"The applicants/legal heirs of deceased plaintiff have filed these 3 applications on 11.01.2012 U/O XXXII Rule 3. XXXII Rule 9 of CPC and U/Sec. 5 of Limitation Act and pray this Court to implead them as plaintiff No.
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C/W WP No. 107548 of 2017, WP No. 107549 of 2017 1A to 1H to this suit by setting aside the abatement order by condoning the delay caused in filing these applications.
2. After hearing both the parties, this Court had passed orders on these applications on 17.10.2016 and thereby allowed all the three applications and permitted the applicants to come on record as plaintiff No. 1A to 1H.
3. Aggrieved by the orders passed by this Court, the defendants approached the Hon'ble High Court and filed Writ Petition No.108735/2016 C/W W.P.No.108736 and 108734/2016 (GM-CPC), challenging the correctness of the orders passed by this Court. After hearing both the parties the Hon'ble High Court allowed the writ petitions and set aside the orders passed by this Court on 17.10.2016 and directed the applicants to file their additional affidavits towards their contentions and also to tender their evidence to satisfy the Court to condone the delay.
4. In compliance of the orders passed by the Hon'ble High Court, the legal heirs of the deceased plaintiff Le.. applicant No. 1D filed his 3 sworn affidavits in support of their contentions raised in three IAS dated 11.01.2012.
5. The defendants filed their objections to the said affidavits, which were filed by the legal heirs of the plaintiff in compliance of the High Court orders. The defendants contend that the averments made in the affidavit are false. The grounds stated in the affidavit are
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C/W WP No. 107548 of 2017, WP No. 107549 of 2017 very much known and available to the applicants but those facts were not averred earlier. The father of the applicants was soliciting the service of 4-5 Advocates and hence the death of the counsel representing the original plaintiff in the case on hand did not affect the interest of the plaintiff. The original plaintiff willfully and deliberately did not prosecute the matter knowing the factual reality and hence he was not interested in claiming any relief. The applicants slept over the matter for a period of more than 3 years despite the knowledge of present suit. So, they cannot attribute the lapses to the office of the Court in not tracing the file. The office has put up the file as soon as the applicants filed the present application on 11.01.2012. The applicants ought to have filed these applications Immediately after the death of their father in the year 2009, so that the office could have put up the file in the year 2009 itself, since the records of the suit were already received in the year 2008. Thus the applicants have not assigned good reasons to condone the delay and set aside the abatement order so as to implead them as parties to this suit. Accordingly, the defendants prayed the Court to dismiss the applications.
6. I have heard both the counsels on these applications.
7. The following points arise for my consideration:
1. Whether the legal heirs of the plaintiff have assigned good reasons to condone the delay and thereby set aside the abatement order?
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2. Whether the applicants/legal heirs of deceased plaintiff have assigned good reasons to implead themselves as plaintiff No. 1[A] to 1[H] to this suit?
3. What order?
8. My answers to the above points are as under:
Point No.1: In affirmative Point No.2 In affirmative Point No.3: As per final order for the following:
REASONS Point No.1 and 2: As these two points are interrelated, I take both the points together for common discussion to avoid repetition.
9. The plaintiff Mr. Maruti Devappa Dhakaluche had filed this suit against the defendants for the relief of specific performance of contract. On enquiry this Court decreed the suit of the plaintiff on 26-2-2000. Aggrieved by the judgment passed by this Court, the defendants preferred RFA No.290/2000 to 292/2000 before the Hon'ble High Court of Karnataka. On enquiry the Hon'ble High Court allowed the said appeals on 04.12.2007 and remanded the matter to the Trial Court to frame necessary issues on the basis of defence taken by the defendants.
10. On 21.02.2008 this Court received the records from the Hon'ble High Court. On 19.01.2009 the plaintiff died. In the meanwhile, the case was not called in the Open Court. On 11-1-2012 the applicants who are the legal heirs of deceased plaintiff had filed these 3 applications to come on record as plaintiff No. 1[A] to 1[H]. On the
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WP No. 107547 of 2017C/W WP No. 107548 of 2017, WP No. 107549 of 2017 same day this Court passed orders and allowed all the 3 applications. Accordingly they were permitted to carry out amendment to the cause title of the plaint to implead themselves as the legal heirs of the plaintiff.
11. While passing orders on these applications on 11.01.2012 this Court has noted that the records were misplaced after the receipt of the records from the Hon'ble High Court and only on 11.01.2012 when the applications were filed, it was traced out. After passing of the orders on these applications, the matter was posted to carry out amendment. The Court notices were issued to both the parties as the matter was remanded for disposal in accordance with law.
12. Subsequently, on enquiry this Court passed judgment on 09.01.2014 and decreed the suit of the plaintiff in part. Aggrieved by the judgment passed by this Court on 09.01.2014, the defendants preferred R.A.No.26/2014 before the Hon'ble II Fast Track Court, Belagavi. On enquiry the said appeal was also dismissed and the Hon'ble first appellate Court upheld the judgment of the Trial Court passed on 09.01.2014.
13. Aggrieved by that judgment the defendants preferred RSA No.100702/2014. In that appeal the defendants contended that the L.A. copies dated 11.01.2012 have not been served on them and without providing an opportunity to them, the Court has allowed the applications. Further the defendants contended before the High Court that they were unaware of the passing of the orders dated 11.01.2012. The suit which was abated could not have been restored without providing an
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WP No. 107547 of 2017C/W WP No. 107548 of 2017, WP No. 107549 of 2017 opportunity to them. Hence the Hon'ble High Court allowed the appeal, set aside the judgment and decree passed in R.A.No.26/2014 and O.S.No.2/1992 is restored to file.
14. While passing judgment in RSA No.100702/2014, the Hon'ble High Court directed the plaintiffs to furnish the
1.As. Copies dated 11.01.2012 and the defendants were directed to file objections if any to the said applications and the Trial Court was directed to consider those I.As. and pass an appropriate orders. Accordingly the defendants filed their objections to these applications. After hearing both the parties, this Court passed orders on 17.10.2016 and thereby allowed 3 IAS dated 11.01.2012.
15. The defendants challenged the orders dated 17.10.2016 and preferred Writ Petition No.108735/2016 C/W W.P.No.108736 and 108734/2016 (GM-CPC) before the Hon'ble High Court of Karnataka. In view of the directions given by the Hon'ble High Court in the above writ petitions, these IAs dated 11.01.2012 are taken up for fresh disposal.
16. In view of the orders passed by the Hon'ble High Court in RFA No.290-292/2000 O.S.No.2/1992 is remanded to this Court for fresh disposal. On 21.02.2008, this Court office has received on 04.12.2007, the records from the Hon'ble High Court. The applicants have produced the certified copy of the inward register of this Court to substantiate that aspect. By perusing the certified copy of the inward register, it
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WP No. 107547 of 2017C/W WP No. 107548 of 2017, WP No. 107549 of 2017 becomes clear that the office has received the records of this case on 21.02.2008 from the Hon'ble High Court.
17. The applicants have also produced the death certificate of the original plaintiff to show that he died on 19.01.2009. On 21.02.2008, this Court had received the records from the Hon'ble High Court. At the time of remand, the original plaintiff was alive. After the remand of the case, this case was not called in the open Court. The case file was misplaced and hence it was not called till the applicants filed this application on 11.01.2012.
18. After the remand of the case, it is the duty of the concerned Court official to put the case file before the Presiding Officer. But, the concerned clerk has not put up the file till 11.01.2012. On that day these applicants have filed the present 3 applications to come on record. After the remand of the case and after the receipt of entire case file from the Hon'ble High Court, this case was not called in the open Court as it was misplaced. It can be seen from the order sheet. Misplacement of the case records is noted by the Court while passing orders on 11.01.2012.
19. Immediately after the remand, the original plaintiff has also not filed any applications before the Court to take up the matter. As per Article 120 of Limitation Act necessary application has to be filed within 90 days from the date of death of the plaintiff or the defendant as the case may be to bring the legal heirs of the respective parties on record. If the same is not filed within the stipulated period, the suit against such dead person abates automatically. The legal heirs of the dead person
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WP No. 107547 of 2017C/W WP No. 107548 of 2017, WP No. 107549 of 2017 can approach the Court within 60 days to set aside the order of abatement to implead themselves as parties to the suit. If the same is not filed within 60 days, the parties can file necessary application U/S 5 of Limitation Act to condone the delay in filing necessary applications.
20. In this case admittedly the sole plaintiff died on 19.01.2009. The applicants being the legal heirs of the plaintiff ought to have filed necessary applications within the stipulated period. However they did not do so. The present applications came to be filed on 11-1-2012 i.e. nearly after a lapse of 3 years i.e. 2 years 11 months and odd.
21. remanded to this Court. He died, when the case file was The plaintiff was alive when the matter was misplaced and that is the reason why the applicants could not file necessary applications in time. Moreover, the case was not called in the open Court even after the remand of the case as per the orders passed by the Hon'ble High Court of Karnataka in RFA No.290- 292/2000.
22. The suit does not abate in view of order XXII Rule 1 of C.P.C. Order XXI R.1 of C.P.C. says that, the death of plaintiff or defendant shall not cause the suit to abate if the right to sue survives. In this case though the application is filed after a lapse of 2 years and 11 months to bring the legal heirs of the deceased sole plaintiff on record, the suit against the sole plaintiff will not abate. This is a suit filed for the relief of specific performance of contract and perpetual injunction. The right to sue survives on the legal heirs of deceased plaintiff. It is
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WP No. 107547 of 2017C/W WP No. 107548 of 2017, WP No. 107549 of 2017 pertinent to note here that the plaintiff was alive when the suit was decreed for the first time on 26-2- 2000. Subsequently after the remand of this case also the plaintiff was alive. When the case records were misplaced in the Court office, at that time the plaintiff died.
23. Even if the application to bring the legal heirs of deceased sole plaintiff was not filed within the stipulated period, the right to sue survives on his legal heirs in view of order XXII Rule 1 of C.P.C.
Hon'ble Apex Court has held that CPC, 0.22 R.9 Limitation Act (36 of 1963). S. 5- Application for setting aside abatement -Delay -Condonation- Conduct of applicant- Ground raised that applicants were staying away from their father (deceased) - Had no knowledge of pending appeal- Acquired knowledge only when counsel informed them about hearing of appeal- Ground that applicants were staying away contrary to one taken in application for bringing LRS on record- Assertion that applicants had no knowledge - Unbelievable as one applicant was examined in trial - Application in fact made much after applications were informed by counsel- Delay of over two years not liable to be condoned.
(B) Limitation Act (36 of 1963), S.5 Civil P.C.(5 of 1908), 0.22 R.9 Condonation of delay- Sufficient cause - "Liberal approach"- Does not mean doing injustice to opposite party Made belatedly Application to set aside abatement Ground raised for condonation not - Delay cannot be - sufficient and also unbelievable condoned - Provisions of 0.22 R. 9 cannot be so construed so as to make it
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WP No. 107547 of 2017C/W WP No. 107548 of 2017, WP No. 107549 of 2017 redundant. down in the above case cannot be made applicable to the case on hand. Because the applicants have assigned The ratio laid good reasons for condoning the delay. Moreover, the right to sue survives on them after the death of sole plaintiff.
24. From the order sheet itself it appears that the case file was misplaced from the year 2008 to the year 2012 According to the legal heirs of deceased plaintiff there was no opportunity for them to file necessary application as the case file was missing. There was no chance for the applicants to search the Court file. Hence, there is no material on record to disbelieve the contentions taken by the legal heirs of the plaintiff.
25. Moreover the counsel now appearing for the applicants submit that the counsel appearing for the plaintiff earlier died after the remand of the this case and hence necessary application was not filed within the stipulated period. When the plaintiff and his counsel are dead there was no opportunity for the applicants to file applications in this suit. Therefore, the defendants cannot contend that the other counsels who were handling the cases of the plaintiff could have intimated the Court regarding the death of the plaintiff and the applicants could have filed these applications through them. Therefore the delay in filing these applications cannot be attributed to the applicants because of the misplacing of the records..
26. The counsel appearing for the defendants has relied on a reported decision of AIR 2010 SC 3043 - Balwant Singh (Dead) Vs. Jagdish Singh and others, wherein the
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27. By filing additional affidavit, the applicants have substantiated their contentions. Hence the applicants being the legal heirs of the plaintiff become necessary parties. In their absence the Court cannot proceed further in the matter. Moreover the right to sue survives on the legal heirs of the deceased plaintiff and hence the suit against the plaintiff does not abate. Therefore it is just and proper to condone the delay in filing these applications. In order follow the principles of natural justice and to give fair opportunities to both the parties, it is just and proper to implead the legal heirs of the deceased plaintiff by setting aside the abatement order by condoning the delay. Accordingly I answer point No.1 and 2 in affirmative.
Point No.3: For the aforesaid reasons I proceed to pass the following:
ORDER The I.A's filed by the applicants/legal heirs of deceased plaintiff on 11.01.2012 U/O XXII Rule 3, XXII Rule 9 of CPC and U/S 5 of Limitation Act are hereby allowed.
The abatement order is hereby set aside. The delay in filing the applications is hereby condoned."
9. Upon reconsideration, re-evaluation and re-appreciating the entire material on record bearing in mind the suit is of the year 1992 and by adopting justice oriented approach and to enable the parties to give quietus to the
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C/W WP No. 107548 of 2017, WP No. 107549 of 2017 litigation by disposing off the same on merits, I am of the view that the impugned order passed by the trial Court does not suffer any infirmity or illegality nor can the same be said to have occasioned failure of justice as held in the case of Radhyesham V/s Chabbinath reported in (2015) 5 SCC
473. Accordingly, I do not find any merit in the petitions and same are dismissed.
The trial Court is directed to dispose off the suit as expeditiously as possible.
SD JUDGE CLK/List No.: 1 Sl No.: 31