Karnataka High Court
Sri G Vasanth @ Shadakshari vs Sri H Ananth on 30 July, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 20.06.2025
Pronounced on : 30.07.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.20912 OF 2022 (GM - CPC)
BETWEEN:
SRI G.VASANTH @ SHADAKSHARI
SINCE DECEASED BY HIS LR'S
1 . SMT.SHANTHA KUMARI G.,
W/O.LATE G.SHADAKSHARI,
AGED ABOUT 64 YEARS.
2 . SRI SHANKAR S.,
S/O LATE G.SHADAKSHARI,
AGED ABOUT 49 YEARS.
3 . SRI SACHIN KUMAR S.,
S/O LATE G.SHADAKSHARI,
AGED ABOUT 41 YEARS.
PETITIONERS NO.1 TO 3
ARE RESIDING AT NO.34,
1ST ANJANEYA TEMPLE STREET,
SHESHADRIPURAM,
BENGALURU - 560 020.
2
4 . SMT. ANITHA P.K.,
D/O.LATE G.SHADAKSHARI,
W/O.PRAVEEN KUMAR K.R,
AGED ABOUT 46 YEARS,
R/A NO.18, 2ND CROSS,
PALACE CROSS ROAD,
CHAKRAVARTHY LAYOUT,
BENGALURU - 560 020.
... PETITIONERS
(BY SRI VIJAYA KUMAR K., ADVOCATE)
AND:
1 . SRI H.ANANTH
S/O HANUMANTHAPPA,
AGED ABOUT 52 YEARS,
RESIDING AT P.J.BADAVANE,
DAVANAGERE - 570 002.
SRI RAMAKRISHNAPPA
SINCE DECEASED BY HIS LR
2 . SRI A.N.SANTHOSH KUMAR
S/O LATE NARAYANAGOWDA,
AGED ABOUT 35 YEARS,
RESIDING AT NO.1050,
SANTHOSH NILAYA, 8TH CROSS,
10TH MAIN ROAD, JUDICIAL LAYOUT,
ALLALASANDA, G.K.V.K. POST,
BENGALURU - 560 064.
... RESPONDENTS
(BY SRI BALARAM M.L., ADVOCATE FOR R-1;
SRI MITHUN G.A., ADVOCATE FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN
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O.S.NO.2/2017 PENDING ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, GAURIBIDANUR AND SET ASIDE THE ORDER
DTD 19.8.2022 PASSED ON I.A.NO.12 TO 15 FILED BY THE R2
ANNEXURE-A AND CONSEQUENTLY DISMISS I.A.NO.12 TO 15, BY
ALLOWING THIS WRIT PETITION.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 20.06.2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioners/defendants 2(a) to (d) are before this Court
calling in question an order dated 19-08-2022 passed by the Senior
Civil Judge and JMFC, Gowribidanur on I.A.Nos.12 to 15 filed by
respondent No.2/defendant No.1(a) under Order XXII Rule 4 of the
CPC seeking permission to come on record as legal representative
of defendant No.1 etc.
2. Heard Sri Vijayakumar, learned counsel appearing for the
petitioners, Sri M.L.Balaram, learned counsel appearing for
respondent No.1 and Sri G.A. Mithun, learned counsel appearing for
respondent No.2.
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3. Facts, in brief germane are as follows: -
The plaintiff/1st respondent herein institutes a suit in O.S.No.2
of 2017 initially against the 1st defendant for declaration that the
plaintiff is the absolute owner in possession and enjoyment of the
suit schedule properties. A second prayer was sought seeking
declaration that the sale deed dated 03-05-2017 executed by 1st
defendant in favour of the 2nd defendant in respect of the suit
schedule property is not binding on him and consequently to grant
perpetual injunction restraining the defendants from interfering with
the suit schedule property. During the pendency of the said suit, an
application in I.A.No.III was filed seeking to implead defendant
No.2 as party defendant to the proceedings. The said I.A. comes to
be allowed. Sometime thereafter, defendant No.2 dies and his legal
representatives four in number are brought on record as defendants
2(a) to (d). The defendants then file their respective written
statement and the trial progressed.
4. During the pendency of proceedings, defendant No.1 dies
on 10-09-2019. The General Power of Attorney holder of the 1st
defendant files a memo to permit him to come on record and
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prosecute the case on behalf of the 1st defendant, as he had no
issues or any legal representative. In terms of the order dated
9-10-2020 the concerned Court rejects the memo filed by the GPA
holder of the 1st defendant. On 10-08-2022, the 2nd
respondent/defendant No.1(a) files three applications - one under
Order XXII Rule 4 CPC seeking impleadment into the proceedings,
second, under Order XXII Rule 9 CPC seeking condonation of delay
and the third one, under Order XXII Rule 10 of the CPC seeking
setting aside of abatement contending that the 1st defendant who
then died was his uncle and his uncle had executed a Will in his
favour during his life time. Defendant No.2(c) files objections to all
the applications. The concerned Court allows applications in terms
of its order impugned dated 19.08.2022. It is this that has driven
the petitioners/defendants 2(a) to (d), legal representatives of
defendant No.2 to this Court in this writ petition.
5. Learned counsel appearing for the petitioners/ defendants
2(a) to (d) would vehemently contend that the order allowing the
applications, without conduct of any inquiry, is on the face of it
erroneous. He would submit that defendant No.1 had executed a
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GPA in favour of Rajanna. Defendant No.1 had denied the alleged
GPA and sale deed executed by defendant No.1. When such being
the case, there can be no question of impleading the legal heirs of
defendant No.1, as defendant No.1 when he had filed the written
statement had categorically denied execution of GPA or any sale
deed. Therefore, it was for the plaintiff to prove that he was in
possession of the property to claim the relief of declaration. He
would further contend that the so-called representative of
defendant No.1 has now setup a Will only to defeat the rights of the
present petitioners/defendants 2(a) to (d)who are in possession of
the property pursuant to the sale deed executed in the year 2017.
6. Per contra, learned counsel appearing for the respondents
would vehemently refute the submissions to contend that a
judgment cannot be obtained in thin air. There must be a
defendant. It is the plaintiff who had impleaded defendant No.1 one
Ramakrishnappa, originally. The said Ramakrishnappa died during
the pendency of the suit. Therefore, his legal representative must
be brought on record. Somebody should pursue the written
statement already filed by the original 1st defendant. It is the case
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of the petitioners that defendant No.1 has denied execution of the
GPA in favour of one Rajanna. Rajanna in turn is said to have sold
the property to the plaintiff. All these matters will have to be
proved by way of evidence. What the proposed defendant No.1(a)
would do cannot now be foreseen to stall his entry into the
proceedings. They would in unison contend that defendant No.1(a)
is a proper and necessary party to the proceedings.
7. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
8. The afore-narrated maze of facts are as found in the
pleadings. A coordinate Bench of this Court owing to the plea
projected, granted an interim order of stay of further proceedings
before the concerned Court by the following order:
"Sri Vijaya Kumar K., the learned counsel for the
petitioner, is heard on grant of ad interim order.
The learned counsel submits that the applications filed by
the purported legatees of the deceased first respondent are
allowed without an enquiry under Order XXII Rule 5 of the Code
of Civil Procedure, 1908. He urges this amongst other grounds
such as the prior orders of the trial Court on the application filed
under Order XXII of CPC in support of the petition.
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In consideration of these submissions, further proceeding
in the suit in O.S.No.02/2017 on the file of the Senior Civil
Judge and JMFC, Gauribidanur is stayed till the next date of
hearing.
There shall be emergent notice to the respondents
returnable by 12.12.2022.
The learned counsel for the petitioner, in addition to
furnishing requisites for issuance of such notice, shall also serve
copies of the writ papers on the learned counsel for the
respondents before the trial Court and file acknowledgment
indicating the name of the learned counsel to whom the copy is
served in this regard by the next date of hearing."
The said interim order is in subsistence even today. The issue now
would be, whether the order that is passed permitting impleadment
of the applicant to come on record as legal representative of the 1st
defendant and the alleged Will is in consonance with law or not?
9. Now it becomes apposite to refer to the judgments of the
Apex Court interpreting Order XXII Rule 4 of the CPC. The Apex
Court in the case of SUSHIL K. CHAKRAVARTY v. TEJ
PROPERTIES PRIVATRE LIMITED1, has held as follows:
".... .... ....
31. It is possible for us, in the facts of this case, to record
an answer to the question posed above. We shall now
endeavour to do so:
1
(2013) 9 SCC 642
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31.1. It is not a matter of dispute, that Sushil K.C. had
died on 3-6-2003. It is also not a matter of dispute, that on 29-
8-2003 the plaintiff Tej Properties (the respondent herein) had
filed an interlocutory application, being IA No. 9676 of 2003
under Order 22 Rule 4(4) of the Code of Civil Procedure, for
proceeding with CS (OS) No. 2501 of 1997 ex parte, by bringing
to the notice of the learned Single Judge, that Sushil K.C. had
died on 3-6-2003. That being the acknowledged position, when
the learned Single Judge allowed the proceedings in CS(OS) No.
2501 of 1997 to progress further, it is imperative to infer, that
the Court had taken a conscious decision under Order 22 Rule
4(4) of the Code of Civil Procedure, to proceed with the matter
ex parte as against interests of Sushil K.C. (the defendant
therein), without first requiring Tej Properties (the plaintiff
therein) to implead the legal representatives of the deceased
defendant. It is therefore, that evidence was recorded on behalf
of the plaintiff therein i.e. Tej Properties (the respondent herein)
on 28-1-2005.
31.2. In the aforesaid view of the matter, there is
certainly no doubt in our mind, that being mindful of the death
of Sushil K.C., which came to his knowledge through IA No.
7696 of 2006, a conscious decision was taken by the learned
Single Judge, to proceed with the matter ex parte as against the
interests of Sushil K.C. This position adopted by the learned
Single Judge in CS (OS) No. 2501 of 1997 was clearly
permissible under Order 22 Rule 4(4) of the Code of Civil
Procedure.
31.3. A trial court can proceed with a suit under the
aforementioned provision, without impleading the legal
representatives of a defendant, who having filed a
written statement has failed to appear and contest the
suit, if the court considers it fit to do so. All the ingredients
of Order 22 Rule 4(4) of the Code of Civil Procedure stood fully
satisfied in the facts and circumstances of this case. In this
behalf all that needs to be noticed is, that the defendant Sushil
K.C. having entered appearance in CS (OS) No. 2501 of 1997,
had filed his written statement on 6-3-1998. Thereafter, the
defendant Sushil K.C. stopped appearing in the said civil suit.
Whereafter, he was not even represented through counsel. The
order to proceed against Sushil K.C. ex parte was passed on 1-
8-2000. Even thereupon, no efforts were made by Sushil K.C. to
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participate in the proceedings of CS (OS) No. 2501 of 1997, till
his death on 3-6-2003.
31.4. It is apparent that the trial court was mindful of the
factual position noticed above, and consciously allowed the suit
to proceed further. When the suit was allowed to proceed
further, without insisting on the impleadment of the legal
representatives of Sushil K.C. it was done on the court's
satisfaction, that it was a fit case to exempt the plaintiff
(Tej Properties) from the necessity of impleading the
legal representatives of the sole defendant Sushil K.C.
(the appellant herein). This could only have been done,
on the satisfaction that the parameters postulated under
Order 22 Rule 4(4) of the Code of Civil Procedure, stood
complied. The fact that the aforesaid satisfaction was justified,
has already been affirmatively concluded by us, hereinabove.
31.5. We are therefore of the considered view, that the
learned Single Judge committed no error whatsoever in
proceeding with the matter in CS (OS) No. 2501 of 1997 ex
parte, as against the sole defendant Sushil K.C., without
impleading his legal representatives in his place. We therefore,
hereby, uphold the determination of the learned Single Judge,
with reference to Order 22 Rule 4(4) of the Code of Civil
Procedure."
(Emphasis supplied)
The Apex Court holds that the application under Order XXII Rule 4
CPC or Order IX Rule 13 CPC for impleading the legal
representatives on the death of the sole defendant during the
pendency of the suit needs an inquiry. Need for a conscious
decision by the Court to grant such relief or exemption depends
upon satisfaction of the parameters under Order XXII Rule 4 CPC.
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10. A little earlier to the aforesaid judgment, in the case of
JALADI SUGUNA v. SATYA SAI CENTRAL TRUST2, the Apex
Court has held as follows:
".... .... ....
14. When a respondent in an appeal dies, and the
right to sue survives, the legal representatives of the
deceased respondent have to be brought on record before
the court can proceed further in the appeal. Where the
respondent-plaintiff who has succeeded in a suit, dies
during the pendency of the appeal, any judgment
rendered on hearing the appeal filed by the defendant,
without bringing the legal representatives of the
deceased respondent-plaintiff on record, will be a nullity.
In the appeal before the High Court, the first respondent
therein (Suguna) was the contesting respondent and the
second respondent (the tenant) was only a pro forma
respondent. When the first respondent in the appeal died,
the right to prosecute the appeal survived against her
estate. Therefore, it was necessary to bring the legal
representative(s) of the deceased Suguna on record to
proceed with the appeal.
15. Filing an application to bring the legal
representatives on record, does not amount to bringing
the legal representatives on record. When an LR
application is filed, the court should consider it and
decide whether the persons named therein as the legal
representatives, should be brought on record to
represent the estate of the deceased. Until such decision
by the court, the persons claiming to be the legal
representatives have no right to represent the estate of
the deceased, nor prosecute or defend the case. If there
is a dispute as to who is the legal representative, a
decision should be rendered on such dispute. Only when
the question of legal representative is determined by the
court and such legal representative is brought on record,
2
(2008) 8 SCC 521
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can it be said that the estate of the deceased is
represented. The determination as to who is the legal
representative under Order 22 Rule 5 will of course be for
the limited purpose of representation of the estate of the
deceased, for adjudication of that case. Such
determination for such limited purpose will not confer on
the person held to be the legal representative, any right
to the property which is the subject-matter of the suit,
vis-à-vis other rival claimants to the estate of the
deceased.
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 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.
17. The third respondent, who is the husband of the
deceased, wants to come on record in his capacity as a sole
legal heir of the deceased, and support the case of the Trust
that there was a valid gift by the deceased in its favour. On the
other hand, the appellants want to come on record as
testamentary legatees in whose favour the suit property was
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bequeathed by will, and represent the estate of the deceased
Suguna as inter-meddlers. They want to continue the contest to
the appeal. When Suguna, the first respondent in the appeal
before the High Court died, the proper course for the High
Court, was first to decide as to who were her legal
representatives. For this purpose the High Court could, as in fact
it did, refer the question to a subordinate court under the
proviso to Rule 5 of Order 22 CPC, to secure findings. After
getting the findings, it ought to have decided that question, and
permitted the person(s) who are held to be the legal
representative(s) to come on record. Only then there would be
representation of the estate of the deceased respondent in the
appeal. The appeal could be heard on merits only after the
legal representatives of the deceased first respondent
were brought on record. But in this case, on the dates
when the appeal was heard and disposed of, the first
respondent therein was dead, and though rival claimants
to her estate had put forth their claim to represent her
estate, the dispute as to who should be the legal
representative was left undecided, and as a result the
estate of the deceased had remained unrepresented. The
third respondent was added as the legal representative of
the deceased first respondent only after the final
judgment was rendered allowing the appeal. That
amounts to the appeal being heard against a dead
person. That is clearly impermissible in law. We, therefore,
hold that the entire judgment is a nullity and inoperative.
18. We may look at it from yet another angle. The relief
sought by Suguna in the suit was one in regard to which the
right to sue would have survived to her legal representatives if
she had died during the pendency of the suit. She successfully
prosecuted the suit and obtained the decree declaring the deed
to be void. The said decree would continue to be in force unless
it is set aside in a manner known to law. It could be set aside in
an appeal filed by the aggrieved party, but only after hearing
the plaintiff who had secured the decree. Pronouncement of
judgment in a case, can be only after the case has been heard.
(Vide Section 33, Order 20 Rule 1 and Order 41 Rule 30 CPC.)
When the respondent-plaintiff died and his/her estate remained
unrepresented, it cannot be said that the appeal was "heard".
When the respondent-plaintiff died, the legal representatives
who succeeded to her estate will have to be brought on record
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and they should be heard in their capacity as persons
representing the estate of the deceased plaintiff. If they are not
heard, there is no "hearing" of the appeal in the eye of the law.
Consequently, the judgment of the trial court could not be
disturbed or set aside by the appellate court. Be that as it may.
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 the 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."
(Emphasis supplied)
The Apex Court holds that an inquiry must be conducted prior to
the decision permitting impleadment. If there is no dispute and no
objection, it can be allowed, but if there is a dispute with regard to
entry of a person to the proceedings, it cannot be allowed without
any inquiry. When this being the law, what the concerned Court has
been done on the application is germane to be noticed. The
concerned Court allows the application by the following order:
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"Sri R.C. seriously opposed for allowing the applications.
Heard. Satisfied as to the cause shown in the affidavits i.e.,
I.A.Nos. 10 to 15. Same are allowed subject to burden of proof
on them to prove that, they are the legal representatives of
deceased defendant No.1 and alleged Will. Amendment and
amended plaint by 22-08-2022."
The order, to say the least, is preposterous. There is not even a
semblance of reasoning as to why the legal representative of the
deceased defendant No.1 and the alleged Will are to come on
record. There is a serious dispute by defendant Nos. 2(a) to (d)
before the concerned Court to permit impleadment of defendant
No.1(a) to come on record. When that is the case, the manner in
which the order impugned is passed, is on the face of it, abdication
of judicial duty to consider the application and the objections on
their merits. In that light, the order dated 19-08-2022 is rendered
unsustainable. The unsustainability of it would lead to its
obliteration and a direction to the concerned Court to redo the
exercise of consideration of the application filed by the said legal
representative of defendant No.1 and the objections filed thereto by
the present petitioners and pass necessary orders in accordance
with law.
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11. For the aforesaid reasons, I pass the following:
ORDER
(i) Writ Petition is allowed.
(ii) Order dated 19-08-2022 passed by the Senior Civil Judge and JMFC, Gowribidanur on I.A.Nos. 12 to 15 in O.S.No.2 of 2017 is set aside. The matter is remitted back to the hands of the concerned Court to pass necessary orders in accordance with law, bearing in mind the observations made in the course of the order.
(iii) The concerned Court shall pass necessary orders within 8 weeks from the date of receipt of a copy of this order.
Consequently, I.A.No.1 of 2025 also stands disposed.
SD/-
(M.NAGAPRASANNA) JUDGE bkp CT:MJ