Karnataka High Court
Sri Pradeep Rai vs Smt Saritha P Bhandary on 11 December, 2017
Author: B.Veerappa
Bench: B.Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF DECEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
WRIT PETITION Nos.49022-49023 OF 2017(GM-CPC)
AND
WRIT PETITION No.50560/2017
BETWEEN :
1. Sri Pradeep Rai,
S/o.Justice Kudooru
Narayana Rai,
Aged about 62 years,
Husband of Suchetha Rai
Resident of Koila Junction,
Raai Post and Village,
Bantwal Taluk - 574 211,
D.K.District.
2. Ms.Spoorthi Rai,
D/o.Sri Pradeep Rai,
Aged about 30 years,
Resident of Ananthanagar,
Soni Clinic Road,
Manipal Post - 576 104,
Udupi Taluk and District.
Petitioner No.2 represented by their
General Power of Attorney Holder
Sri Thingale Vikramarjuna Hegde,
Son of Sri Thingale Ravindra Hegde,
Aged about 49 years,
Resident of Thingale Chavadi House,
Nadavupadu Village - 574 104,
Ajikkaru Hobli, Karkala Taluk. ... Petitioners
(By Ms.Gauthami S.Bhandary, Advocate
for Sri Aruna Shyam, Advocate)
2
AND:
1. Smt.Saritha P.Bhandary,
W/o.Prahlad Bhandary,
Aged about 28 years,
Residing at 2260,
House No.1, II Floor,
I Main, 4th 'A' Cross,
RPC Layout, Vijayanagar,
Bengaluru - 560 040. ... Respondent
These writ petitions are filed under Articles 226
and 227 of the Constitution of India praying to quash
the order dated 8.9.2017 on I.A.Nos. XXIII to XXV in
O.S.No.13/2005 on the file of the Senior Civil Judge and
Chief Judicial Magistrate, Karkala thereby allowing the
applications permitting the plaintiffs to implead the
petitioners as defendants by setting aside the
abatement and also by condoning the delay and dismiss
the applications filed by the respondents, a copy of
which is produced as Annexure-A and etc.
These writ petitions, coming on for preliminary
hearing, this day, the Court made the following:
ORDER
The present writ petitions are filed by the defendant Nos. 25(a) and 25(b) against the impugned order dated 08.09.2017 on I.A.Nos. 23, 24 and 25 made in O.S.No.13/2005, allowing the applications filed under Order 22 Rule 4 r/w. Section 151 of Civil Procedure Code, Order 22 Rule 9 r/w. Section 151 of 3 Civil Procedure Code and Section 5 of the Limitation Act, 1963.
2. The respondent, who was the plaintiff before the Trial Court filed the suit for declaration to declare that the plaintiff is the absolute owner on mooli right in respect of the plaint 'A' schedule properties dated 28.12.1974 executed by K.Thimmappa Shetty son of K.Anthayya Shetty in her favour. By way of consequential relief, to direct defendants 22 to 26 to deliver vacant possession of the plaint 'A' schedule properties in favour of the plaintiff. She has also prayed for a direction to defendants 22 to 26 to pay plaintiff past mesne profits at the rate of Rs.5,500/- p.a. for the year ending 31.05.1988 and 31.05.1989 and also to pay plaintiff future mesene profits from the date of the suit till delivery of possession of the 'A' Schedule properties to the plaintiff.
3. Defendant No.26 filed the written statement, denied the plaint averments and contended that the suit filed by the plaintiff is misconceived and not 4 maintainable, the suit is liable to be transferred to the Land Tribunal, Karkala and sought for dismissal of the suit.
4. During the pendency of the proceedings, defendant No.25 died. The same was brought to the notice of the Court by the learned counsel for the 26th defendant on 10.11.2016 as per the statement made by Ms.Gouthami, learned counsel for petitioners in the open court. Thereafter, plaintiff filed 3 applications I.A.Nos. 23, 24 and 25 under the provisions of Order 22 Rule 4 of Civil Procedure Code, Order 22 Rule 9 of Civil Procedure Code and Section 5 of the Limitation Act.
5. It is specifically stated in para 2 of the affidavit accompanying the applications that the 25th defendant died on 01.01.2013, leaving behind opponents as legal representatives and the plaintiff came to know about the death of 25th defendant only on 10.11.2016 when the 26th defendant filed a memo reporting the death of the 25th defendant. Therefore, it is just and necessary to set aside the abatement and to bring the legal representatives of the defendant No.25 on record. The 5 said applications were opposed only by defendant No.26 by filing the objections.
6. The Trial Court, considering the objections, by the impugned order, dated 08.09.2017 allowed the said applications and permitted to bring the legal representatives of deceased defendant No.25 on record as defendant Nos. 25(a) and 25(b). Hence, the present writ petitions are filed.
7. I have heard learned counsel for the petitioners.
8. Ms.Gouthami S.Bhandary, learned counsel for petitioners vehemently contended that the impugned order passed by the Trial Court, allowing the applications, after a lapse of 3 years 10 months and 19 days are not maintainable and liable to be dismissed. She would further contend that the plaintiff and the 25th defendant are relatives and from the date of death of the 25th defendant, they should have filed the application within 90 days as contemplated in Article 120 of the Limitation Act. Therefore, she submits that 6 the impugned order passed by the Trial Court is liable to be quashed by allowing the present writ petitions.
9. Having heard learned counsel for the petitioners, it is an undisputed fact that the present respondent who was the plaintiff before the Trial Court filed suit for declaratory decree and the same was disputed by the defendants by filing written statement. It is also not in dispute that the 25th defendant died during the pendency of the proceedings. As stated by the learned counsel for the petitioners the report of the 25th defendant's death was brought to the notice of the Court only on 10.11.2016. Thereafter, applications came to be filed on 21.11.2016, within the time stipulated from the date of knowledge as contemplated.
10. The plaintiff specifically stated on oath in the affidavit that she came to know about the death of 25th defendant only on 10.11.2016 when the 26th defendant filed a memo reporting the death of 25th defendant. Therefore, the application was filed within the time. Three applications filed by the plaintiff - I.A.Nos.23, 24 7 and 25 under Order 22 Rule 4 of Civil Procedure Code, Order 22 Rule 9 of Civil Procedure Code and Section 5 of the Limitation Act were opposed only by the 26th defendant by filing objections before the Trial Court.
11. Admittedly, the present petitioners, who were defendant Nos. 25(a) and 25(b) have not filed objections to the said I.A. The 26th defendant who has filed objections is not before this Court challenging the impugned order passed by the Trial Court allowing the applications to bring the legal representatives of defendant No.25 to come on record. The rights of the parties are involved in respect of immovable properties to a larger extent. Therefore, the Trial Court allowed the said applications filed by the plaintiff stating that the plaintiff came to know about the death of the 25th defendant only on 10.11.2016 and the applications filed on 21.11.2016. When the rights of the parties are involved, the Court should not reject the L.R. application on the ground of technicality. Admittedly, it is the duty of the concerned learned advocates to bring it before the Court about the death of any of the persons. 8
12. In the present case, the 26th defendant filed the application reporting the death of 25th defendant only on 10.11.2016 and the present applications filed on 21.11.2016 are within the time. Therefore, the contention of the learned counsel for the petitioners that there is a delay of 3 years 10 months and 19 days cannot be accepted. When the rights of the parties are involved in respect of a immovable property, when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Therefore, Admittedly, in the present writ petitions, 9 plaintiff filed an affidavit before the Court and categorically stated that she was not aware of the death of 25th defendant till 10.11.2016 and she came to know the same on the day when the 26th defendant filed a memo reporting the death of 25th defendant and the applications are filed well within the time from the date of the knowledge.
13. Admittedly, the said applications filed by the plaintiff was opposed only by the 26th defendant, who is not before this Court. Therefore, the Trial Court considering the applications and objections, recorded a specific finding from the evidence of PW1 and DW1 that it is sufficient to hold that delay is not deliberate one, there is a duty cast upon both the sides to report death of a party. There is no material to show that the plaintiff has attended the funeral ceremony of 25th defendant. This being the case, there is every chance of appreciation of evidence on record and having regard to the same the Trial Court cannot go into the merits of the case. Therefore, the Trial Court was of the opinion that the applications have to be allowed. Petitioners 10 have not made out any case to interfere with the impugned order passed by the Trial Court allowing the applications filed under Order 22 Rule 4 of Civil Procedure Code, Order 22 Rule 9 Civil Procedure Code and Section 5 of the Limitation Act exercising the writ jurisdiction under Article 227 of the Constitution of India.
14. Accordingly, writ petitions are dismissed.
Sd/-
JUDGE Cm/-