Karnataka High Court
Smt. Sarvamma vs Virupakshappa U R on 18 February, 2016
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF FEBRUARY 2016
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
WRIT PETITION No.32534/2015(GM-CPC)
BETWEEN:
1. Smt Sarvamma @ Sarvamangala B P
W/o Late T C Nanjappa
Aged about 56 years
2. Smt Kathyayini
W/o Girish Babu
D/o T C Nanjappa (late)
Aged about 25 years
Both are residents of
Chikkathottikere
Kora Hobli
Tumkur District-572 101. ... PETITIONERS
(By Sri C S Prem Kumar, Adv.)
AND:
1. Virupakshappa U R
Since dead by his alleged L.Rs.
(a) Sowbhagya
W/o Late Virupakshappa
Aged about 51 years
(b) T V Shivakumar
S/o Late Virupakshappa
Aged about 51 years
(c) Pushpawathi
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W/o Suresh
D/o Late Virupakshappa
Aged about 49 years
(d) T V Sukanya
W/o H S Jagadish Kumar
D/o Late Virupakshappa U R
Aged about 47 years
All residents of 1st Floor
Beside Revanna Siddeswara
Engineering Works
Oil Mill Road
Tumkur-572 101.
2. T S Shivanandappa
S/o Late M Shivarudrappa
Since dead by LR's
2(a) Savithramma @ Savitha
W/o Late T S Shivanandappa
R/o Near Primary School
Kallahalli
Kesaramadu Post
Kyathasandra
Tumkur Taluk.
2(b) T S Anil Kumar
S/o Late T S Shivanandappa
Major, Postman
R/o Near Primary School
Kallahalli
Kesaramadu Post
Kyathasandra
Tumkur Taluk
2(c) T S Veeresh
S/o Late T S Shivanandappa
Major, Auto Driver
R/o Near Primary School
Kallahalli, Kesaramadu post
Kyathasandra
Tumkur Taluk
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3. T M Jayaprakash
S/o Late Mruthunjayappa
R/at Chikkthotlukere Village
Kora Hobli, Tumkur Taluk
4. T S Shiva Kumar
S/o Late M Shivarudrappa
R/at No.8, 1st Floor
Siddaganga Extension
Tumkur-572 101.
5. T S Mallikarjunaiah
S/o Late M Shivarudrappa
R/at No.28, 1st Floor
1st Main, RPC Layout
Near Vijayanagar Club
Vijayanagar 2nd Stage
Bangalore-560 040. ....RESPONDENTS
(By Sri Naveed Ahmed, Adv. for R-1(A-D))
This Writ Petition is filed under Articles 226 & 227 of
the Constitution of India praying to quash the order passed
by the Hon'ble 2nd Addl. Civil Judge (Junior Division),
Tumkur (Annexure-A) dated: 09.07.2015 in
F.D.P.No.32/2003 on I.A. filed by the respondents.
This Writ Petition coming on for Preliminary Hearing
this day, the Court made the following:
ORDER
This writ petition is filed seeking to set aside order dated 9.7.2015 passed on the application filed under Order XXII Rule 3 of CPC in FDP No.32/2003 by the II Additional Civil Judge (Jr. Dn.), Tumkur.
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2. Heard learned counsel appearing for the petitioners and learned counsel appearing for the respondents.
3. Learned counsel for the petitioners during the course of the arguments made submission that the respondents herein filed an application claiming that they are the legal representatives of the deceased petitioner in FDP No.32/2003. The said application was objected by the petitioners herein by filing objection statement. In spite of that, the FDP Court relying upon the death extract of the deceased petitioner and without holding any enquiry, has allowed the application and hence, the learned counsel submitted that holding of the enquiry was necessary in the matter and without doing enquiry, the Court below cannot pass such orders. In this connection, the learned counsel for the petitioners has relied upon the decision in case of KAREDLA PARTHASARADHI Vs. GANGULA RAMANAMMA (D) THROUGH LRs. AND OTHERS reported in AIR 2015 SC 891 and made submission that the order impugned is illegal and not sustainable in law.
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4. Per contra, learned counsel appearing for the respondents submitted that when the original petitioner expired, the application under Order XXII Rule 3 of CPC was filed to bring the applicants on record. But, however, the Court below while disposing of the said application has observed that the application ought to have been filed under Order XXII Rule 10 of CPC and accordingly, considered the said application on merits and ultimately, allowed the application. The respondents were ordered to be come on record as the legal representatives of the deceased original petitioner. The learned counsel submitted that it is claimed by the respondents in the said application that they are the wife and children of the deceased petitioner. It is also his submission that in the objection statement, the other side has not stated as to who are all the other legal representatives of the original petitioner having any interest to claim the title. Hence, the learned counsel submitted that the order passed by the trial Court considering the relationship so also factum of the death of the original petitioner is legal and valid and the contention of the other side is not sustainable.
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5. I have perused the grounds urged in the writ petition and the impugned order passed by the trial Court on the application. I have also perused the application filed under Order XXII Rule 3 of CPC wherein the legal representatives are shown as defendant Nos.1(a) to 1(d). The said application was also supported by the affidavit of one of the legal representatives wherein they have stated that they are the wife and children of the deceased original petitioner. Regarding production of the death extract of the deceased original petitioner, there is no dispute even by the other side. Therefore, the Court below after considering the factual aspect and merits of the application, has ultimately allowed the said application.
6. I have also perused the decision relied upon by the learned counsel for the petitioners herein. The Court below in the present case has conducted enquiry and on the basis of the objection statement filed, ultimately ascertained that the applicants are the legal representatives of the deceased original petitioner therein and allowed the application permitting them to come on record in place of the original petitioner. Therefore, no fault can be found with the order 7 passed by the Court below. No merit in the writ petition. Accordingly, it is rejected.
Sd/-
JUDGE Cs/-
Ct-Sg/-