Karnataka High Court
M A Parthasarathy vs Agromore (P) Limited on 26 April, 2013
Equivalent citations: 2013 (4) AKR 115
Author: Aravind Kumar
Bench: Aravind Kumar
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R
R
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF APRIL 2013
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
R.F.A. NO.657 OF 2013
BETWEEN :
M. A. PARTHASARATHY,
REPERSENTED BY HIS LR
M. A. VEDAVALLI,
WIFE OF LATE MR. M. A. PARTHA SARATHY,
AGED ABOUT 74 YEARS,
RESIDING AT NO.20,
9TH CROSS ROAD,
MALLESHWARAM, BANGALROE - 560 003.
... APPELLANT
(By Sri. DHYAN CHINNAPPA, ADV. FOR
CREST LAW PARTNERS, ADVS.)
AND
1. AGROMORE (P) LIMITED
A COMPANY INCORPORATED UNDER THE
PROVISIONS OF THE COMPANIES ACT AND
HAVING ITS REGISTERED ADDRESS AT NO.6
HOSSAKERAHALLI ROAD, OFF MYSORE ROAD,
BANGALORE AND REPRESENTED HEREIN BY
ITS CHAIRMAN AND MANAGING DIRECTOR.
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2. SRI. M. A. SREENIVASAN,
SON OF M.A.PARTHASARATHY,
AGED ABOUT 48 YEARS, CURRENTLY
RESIDING AT "HAMSINI", NO.1,
12TH CROSS ROAD,
RAJMAHAL VILAS EXTENSION,
BANGALORE - 560 080.
3. MRS. SUJATHA SREENIVASAN POOLA,
WIFE OF SRI. M. A. SREENIVASAN,
AGED ABOUT 45 YEARS,
RESIDING AT "HAMSINI", NO.1,
12TH CROSS ROAD, RAJMAHAL VILAS
EXTENSION, BANGALORE-560080
4. SRI RAMACHANDRA POOLA
FATHER NAME NOT KNOWN TO THE PLAINTIFF,
AGED ABOUT 70 YEARS,
NO.8, 5TH MAIN, MALLESWARAM,
BANGALROE - 560 003.
5. THE SPECIAL LAND ACQUISITION OFFICER,
KARNATAKA INDUSTRIAL AREA DEVELOPMENT
BOARD, GANDHINAGAR,
BANGALORE.
... RESPONDENTS
(By Sri. AMAR KUMAR AND
M. MAHADEVAPPA, ADV. FOR
A. C. YADURAYA GOWDA, ADV. FOR C/R.1-4)
THIS RFA IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGEMENT AND DECREE DATED
02.04.2013 PASSED BY THE HON'BLE XL ADDITIONAL
CITY CIVIL JUDGE, BANGALORE IS O.S. NO.7879 OF
2012 DISMISSING THE SUIT AS ABATED AND ALLOW
THE APPLICATION IN I.A.10 FILED UNDER ORDER
XXII RULE 3 OF CPC.
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THIS APPEAL COMING ON FOR ORDERS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
ORDER REGARDING MAINTAINABILITY OF APPEAL Applicant being aggrieved by order dated 2.4.2013 passed in O.S.7879/2012 dismissing the application I.A.10 filed under Order 22 Rule 3 of CPC read with Section 151 of CPC and consequently holding that suit has abated has preferred this first appeal under Order 41 Rule 1 of CPC.
Registry has raised following objections:-
"How this appeal is maintainable against the order passed in O.S.7879/2012 under Order 22 Rule 3 read with Section 151 of CPC and in view of Order 41 Rule 1 read with Section 96 of CPC to be clarified ?"
2. Parties are referred to as per their ranking in Trial Court.4
Sri.M.A.Parthasarathy (hereinafter referred to as 'plaintiff') filed a suit in O.S.7879/2012 against respondent Nos.1 to 5 seeking following reliefs:
"WHEREFORE, it is most humbly prayed that this Hon'ble Court may be pleased to, by a judgment and decree:
(a) DECLARE that the Plaintiff is and continues to be the Chairman and Managing Director of the Defendant No.1.
(b) DECLARE that any board meeting dated 09.01.2010 said to have to been held by the Defendant No.1 company is illegal and void.
(c) RESTRAIN the Defendant No.2 by a permanent injunction from acting or holding out to be the chairman and Managing Director of the Defendant No.1 in any manner whatsoever.
(d) RESTRAIN the Defendant No.3 and 4 by a permanent injunction from acting or holding out to be the Directors of the Defendant No.1 in any manner whatsoever.
(e) RESTRAIN the Defendant No.2 to 4 from receiving any compensation from the Defendant No.5 for and on behalf of the 5 Defendant No.1 pertaining to the acquisition of land belonging to the Defendant No.1.
(f) RESTRAIN the 2nd to 4th Defendants their agents, servants, henchmen, or any person claiming through or under them, by an order of Permanent injunction, from in any manner claiming any compensation with respect to property bearing Survey No.6/3, Municipal No.7 of Bytarayanapura Village, on Mysore Road measuring approx 51,000 square feet and acquired by the KIADB and that the compensation be paid immediately into this Hon'ble Court;
DIRECT the 2nd to 4th Defendants their agents, servants, hechmen, or any person claiming through or under them, by an order of Permanent Injunction, from in any manner to lease, sell, alienate, build on, alter the balance portion of property not acquired by KIADB which is still in the possession of the Company bearing Survey No.6/3, Municipal No.7, of Bytarayanapura Village, on Mysore Road, and a portion of Land bearing re-
survey No.6, (old No.4) of Jodi Deevatageramanahalli Village, Kengeri Hobli measuring approx ½ acre.
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3. During pendency of the said suit, plaintiff expired on 5.1.2013. His wife, Smt.Vedavalli filed an application to come on record as plaintiff No.1(a). Said application came to be resisted by defendants by filing detailed statement of objections. On adjudication of said application, Trial Court by its order dated 2.4.2013 dismissed the application, which is now assailed in this appeal.
4. In reply to the query, applicant has requested the matter be placed before Court for orders. I have heard the arguments of Sri.Dhyan Chinnappa, learned counsel appearing for applicant and Sri.M.Mahadevappa and Sri.T.S.Amar Kumar, learned advocates appearing for respondent Nos.1 to 4 on behalf of Sri.A.C.Yaduraya Gowda. No notice is issued to R-5.
5. It is the contention of Sri.Dhyan Chinnappa, learned counsel for applicant that suit O.S.7879/2012 was filed by Sri.M.A.Parthasarathy, namely husband of the applicant seeking reliefs stated in plaint and on the 7 demise of plaintiff, applicant has filed an application under Order 22 Rule 3 of CPC to come on record as plaintiff No.1(a) and draws attention of this Court to paragraph 3 of the affidavit supporting application whereunder it is stated that applicant's husband left behind a registered Will bequeathing to her shares of defendant No.1 company and contends that suit was filed by Sri.Parthasarathy not only seeking personal relief but also as a shareholder of the company and as such, wife being class-I heir and as a legatee under the Will she (applicant) would be entitled to come on record and prosecute the suit, but Trial Court committed a serious error in dismissing the application. He would also contend that Trial Court having noticed that relief claimed by plaintiff was a personal right, it ought not to have dismissed the suit. He would submit that said order would amount to a "decree" and as such appeal filed under Section 96 of CPC read with Order 41 Rule 1 of CPC is maintainable. In support of his submission, he has relied upon the judgment of Apex Court in the 8 case of Mangluram Dewangan vs. Surendra Singh and others reported in (2011) 12 SCC 773 particularly drawing attention of this Court to paragraph 25.
6. Per contra Sri.T.S.Amar Kumar, learned counsel appearing on behalf of respondent Nos.1 to 4 would pray the Court to sustain office objections and dismiss the appeal as not maintainable. He draws the attention of the Court to the finding recorded by trial court while dismissing the suit as having been abated by dismissing the application filed under Order 22 Rule 3 of CPC and contends that suit has not been dismissed on any other ground other than holding that suit has abated and applicant is not entitled to come on record on the basis of the Will executed by deceased plaintiff. As such there being no adjudication on any issue, said order does not amount to "decree" as defined under Section 2(2) of CPC and as such appeal is not maintainable. He has also place reliance on Mangluram's case referred to supra by referring to paragraphs 6, 21, 22, 23, 24 and 25.
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7. Having heard the learned advocates appearing for parties and on perusal of the order passed by Trial Court, I am of the considered view that following point would arise for my consideration:
"Whether office objection raised has to be sustained or over ruled?"
8. In order to consider and appreciate the rival contentions raised by learned Advocates, it would be appropriate to extract the relevant provisions which would have a bearing on the factual matrix, namely Sections 2(2), Section 96, Order 41 Rule 1 and Order 43 Rule 1 of CPC and as such they are extracted hereinbelow:-
"2. Definitions. In this Act, unless there is anything repugnant in the subject or context-
(1) xxxxxxx (2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit 10 and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include-
a) any adjudication from which an appeal lies as an appeal from an order, or
b) any order of dismissal for default Section 96 of CPC reads as under:
"Section 96. Appeal from original decree - (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorized to hear appeals from the decisions of such court.
(2) An appeal may lie from an original decree passed ex-parte (3) No appeal shall lie from a decree passed by the Court with the consent of parties"
Order 41 Rule 1 of CPC reads as under:
"1. Form of appeal--What to accompany 11 memorandum.- (1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the judgment Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment."
Order 43 Rule 1 of CPC reads as under:
"1. Appeal from orders.- An appeal shall lie from the following orders under the provisions of section 104, namely:--
(a) xxxxx
(b) xxxxx
(c) xxxxx 12
(d) xxxxx
(e) xxxxx
(f) xxxxx
(g) xxxxx
(h) xxxxx
(i) xxxxx
(j) xxxxx (ja) xxxxx
(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
(l) an order under rule 10 of Order XXII giving or refusing to give leave;
(m) xxxxx
(n) xxxxx (na) xxxxx
(o) xxxxx 13
(p) xxxxx
(q) xxxxx
(r) xxxxx
(s) xxxxx
(t) xxxxx (u) xxxxx
(v) xxxxx (w) xxxxx"
10. Section 96 of CPC is a substantive section which governs filing of appeals. It provides for filing of an appeal against a decree passed by any court exercising original jurisdiction to the Court authorized to hear appeals. Order 41 Rule 1 of CPC prescribes the form in which appeal is to be preferred which is a procedural law. Order 43 Rule 1 of CPC provides for filing of an appeal against the orders provided under Section 104 of CPC namely as expressly provided under Order 43 Rule 1 (a) to (w) of CPC.
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11. There is no dispute with regard to the fact that Order 43 Rule 1 does not provide for an appeal against an order dismissing an application filed under Order 22 Rule 3 of CPC. It is only either allowing or dismissing of application filed under Order 22 Rule 9 and Rule 10 CPC appeal would be maintainable under Order 43 Rule 1 (k) and (l) of CPC respectively. Thus, it boils down to the fact as to whether order in question is to be construed as one falling under Section 96 of CP C, Order 41 Rule 1 read with Section 2(2) of CPC.
12. In an identical situation, Apex Court has considered the effect of these provisions in the case of Mangluram Dewangan vs. Surendra Singh and others reported in (2011) 12 SCC 773 and relevant paragraphs has been extracted hereinbelow:-
"6. Respondents 1 and 2 filed a miscellaneous appeal before the High Court, under Order 43 Rule 1(u) of the Code against the said appellate Court judgment. A learned Single Judge of the Chhattisgarh High Court, 15 by the impugned order dated 15.4.2008 allowed the said appeal and set aside the order dated 28.1.1998 passed by the appellate court and restored the order dated 31.8.1996 passed by the trial court. The High Court held that the order dated 31.8.1996 of the trial court did not amount to a decree and therefore the appeal by the appellant before the appellate court was not maintainable. The High Court held that an order can be a "decree" if it conclusively determined the rights of parties, with regard to all or any of the matters in controversy in the suit. The question whether Prannath executed a will in favour of appellant and thus appellant was a legal representative of Prannath was not an issue in controversy in the suit, but arose incidentally for determination in view of the application of appellant for being brought on record as the legal representative of Prannath. An order on such an application did not decide all or any of the matters in controversy in the suit and not a `decree' as defined under Order 2(2), and therefore, only a revision would be a remedy against such an order and not an appeal.16
21. The applicant in an application under Order 22 Rule 3 is not a party to the suit. An application under Order 22 Rule 3 is by a non-party requesting the court to make him a party as the legal representative of the deceased plaintiff. Necessarily unless the applicant in the application under Order 22 Rule 3 allowed and the applicant is permitted to come on record as the legal representative of the deceased, he will continue to be a non- party to the suit. When such an application by a non-party is dismissed after a determination of the question whether he is a legal representative of the deceased plaintiff, there is no adjudication determining the rights of parties to the suit with regard to all or any of the matters in controversy in the suit. It is determination of a collateral issue as to whether the applicant, who is not a party, should be permitted to come on record as the legal representative of the deceased.
22. Therefore an order dismissing an application under Order 22 Rule 3 after an enquiry under Rule 5 and consequently dismissing the suit, is not a decree.17
23. As the order dated 31.8.1996 is neither a `decree' appealable under section 96 of the Code nor an order appealable under section 104 and Order 43 Rule 1, the remedy of the applicant under Order 22 Rule 3, is to file a revision. The High Court was therefore, right in its view that the adjudication of the question whether an applicant in an application under Order 22 Rule 3 was a legatee under a valid will executed by the deceased plaintiff in his favour, was not a decree and therefore the remedy of the applicant was to file a revision.
24. The appellant submitted that even if the rejection of an application under Order 22 Rule 3 after an enquiry under Rule 5, may not amount to a decree, the consequential dismissal of the suit on the ground that there is no legal representative, is a denial of the substantive rights claimed by the plaintiff against the defendant in the suit. This contention is clearly flawed.
25. If the court orders that suit has abated or dismissed the suit as having abated, as a consequence of rejection of an application 18 under Order 22 Rule 3 of the Code, as noticed above, there is no determination of rights of parties with regard to any of the matters in controversy in the suit and therefore the order is not a decree. But if an order declares that the suit has abated, or dismisses a suit not as a consequence of legal representatives filing any application to come on record, but in view of a finding that right to sue does not survive on the death of sole plaintiff, there is an adjudication determining the rights of parties in regard to all or any of the matters in controversy in the suit, and such order will be a decree. But that is not the case here."
13. On perusal of said judgment it would indicate that suit against respondents for declaration of possession and damages had been filed in respect of immovable property by one Sri.Prannath, who is said to have been expired on 12.11.1994 and an application under Order 22 Rule 3 of CPC came to be filed by the applicant claiming that he was the sole legatee under the registered Will executed by Prannath. Trial Court rejected the said application and held that applicant is 19 not entitled to be treated as legal representative of deceased plaintiff and in the absence of any legal heir of deceased plaintiff, suit came to be dismissed. Aggrieved by said order of dismissal, appeal was filed before the District Court, which came to be allowed on the ground that registered Will was proved since one of the attesting witnesses was examined. An appeal under Order 43 Rule 1 (u) came to be filed before High Court by aggrieved persons since matter had been remanded by the Appellate Court to the Trial Court. High Court allowed the appeal, set aside the order dated 28.1.1998 passed by Appellate Court, restored order dated 31.8.1996 passed by Trial Court dismissing the application. Being aggrieved by this order, applicant pursued the matter before Apex Court. In this background, two questions came to be formulated by the Apex Court, which reads as under:
"8. The following questions arise for consideration on the contentions urged :20
i. Whether an order of the trial court rejecting an application filed under Order 22 Rule 3 of the Code, by a person claiming to be the legatee under the will of the plaintiff and consequently dismissing the suit in the absence of any legal heir, is an appealable decree?
ii. Whether the High Court was justified in upholding the decision of the trial court that the will was not proved and rejecting the application under Order 22 Rule 3 of the Code?"
14. While adjudicating these points Hon'ble Apex Court has specifically held that order dated 31.8.1996 passed by Trial Court is neither a decree appealable under Section 96 of CPC nor an order appealable under Section 104 of CPC and Order 43 Rule 1 of CPC. It has been further held that remedy of the applicant is to file a revision and as such it affirmed the views of High Court by dismissing the appeal reserving liberty to challenge the said order in revision.
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15. It is the contention of Sri.Dhyan Chinnappa learned Advocate appearing for appellant in the present appeal that what has been adjudicated by Trial Court is not merely adjudicating the application under Order 22 Rule 3 of CPC, but Trial Court has gone one step forward to hold that relief claimed by plaintiff is a personal right and as such suit abated soon after the death of plaintiff, and as such, it would be an adjudication determining the right of applicant and hence applicant is entitled to challenge the same as if it were a decree.
16. Perusal of the order assailed in the present appeal when read along with the application filed by applicant under Order 22 Rule 3 of CPC would clearly indicate that what has been adjudicated is the right of applicant to come on record as a legatee under the Will executed by deceased plaintiff. Hon'ble Apex Court in Mangluram Dewangan's case referred to supra has observed that if an order declares that suit has abated 22 or Court dismisses a suit not as a consequence of legal representatives filing any application to come on record as such, but in view of a finding recorded that right to sue does not survive on death of sole plaintiff, then there would be an adjudication determining the rights of parties. In the instant case suit has not been dismissed as a consequence of legal representatives not filing an application to come on record, but on the ground that application is filed by the wife of deceased plaintiff to come one record as a legatee under the Will said to have been executed by deceased plaintiff. It is also to be noticed that applicant is not seeking to come on record as a legal heir of deceased plaintiff but as a legatee under the Will of deceased plaintiff. It has been held by Hon'ble Apex Court in Mangluram Dewangan's case referred to supra as under:
"25. If the court orders that suit has abated or dismissed the suit as having abated, as a consequence of rejection of an application under Order 22 Rule 3 of the Code, as noticed above, there is no determination of rights of 23 parties with regard to any of the matters in controversy in the suit and therefore the order is not a decree. But if an order declares that the suit has abated, or dismisses a suit not as a consequence of legal representatives filing any application to come on record, but in view of a finding that right to sue does not survive on the death of sole plaintiff, there is an adjudication determining the rights of parties in regard to all or any of the matters in controversy in the suit, and such order will be a decree. But that is not the case here."
As such, contention of Sri.Dhyan Chinnappa that on account of their being adjudication determining the right of parties vis-à-vis right of plaintiff being his personal right amounts to a decree, is not acceptable. What has been adjudicated by the trial court in the instant case is the right of the applicant to come on record as legatee under the Will of deceased plaintiff, said application having been dismissed and consequently appeal having been held as abated has 24 been challenged and as such it does not amount to a decree.
17. Even in the present facts and circumstances of the case, we are placed with same present factual matrix. Order assailed herein would clearly indicate that applicant had not made out a case to come on record as legal representative of deceased plaintiff and it was not her prayer also in the application. As such application came to be dismissed. Incidentally it has been observed by the trial court that relief claimed by the plaintiff was his personal right i.e., as a Chairman and Managing Director of 1st defendant Company. Even otherwise judgment of the Apex Court in Mangluram's case referred to supra would lay to rest any such contention or the contention raised by learned counsel for applicant for sustaining the office objection. It can be noticed that in Mangluram's case it has been held if suit has been dismissed not on account of Legal representatives filing an application to come on record being dismissed but on account of right to sue does not 25 survive on the death of sole plaintiff, then it amounts to adjudication which determines the right of the parties and only in such an event it would be a decree and not otherwise. It has been held as under:-
"25. xxxxx. But if an order declares that the suit has abated or dismisses a suit not as a consequence of legal representatives filing any application to come on record, but in view of a finding that right to sue does not survive on the death of the sole plaintiff, there is an adjudication determining the rights of parties in regard to all or any of the matters in controversy in the suit, and such order will be a decree."
18. In other words, if suit has been dismissed as having been abated not on account of dismissing the application by not allowing the applicant to come on record but only on the ground that right to sue does not survive to the legal heir of deceased plaintiff, then it would amount to a decree and not otherwise. As already noticed hereinabove, in the instant case application filed by the applicant to come on record was as a legatee 26 under the Will of deceased plaintiff and not as the legal heir of deceased plaintiff and said application having been dismissed and consequently appeal have held to have abated does not amount to a decree. Hence, point formulated hereinabove is answered in the affirmative and against the appellant-applicant and consequently appeal deserves to be rejected as not maintainable. Hence, following:
ORDER
a) Office objection is sustained.
b) Appeal is dismissed as not maintainable.
c) Order of dismissal would not come in the way of applicant challenging the said order in accordance with law.
d) In the event of application is made by the applicant seeking return of the certified copy of trial court order, registry shall return the same after it is substituted with a attested photo copy.
Parties to bear their costs.
Sd/-
JUDGE DM