Telangana High Court
L Laxmi vs Smt.E Lakshmi on 7 April, 2022
Author: Chillakur Sumalatha
Bench: Chillakur Sumalatha
hTHE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
CIVIL REVISION PETITION No.6061, 5718 and 5739 of
2018
COMMON ORDER:
Challenging the docket order, dated 10-08-2018 that was passed in IA No.1654 of 2017 in OS No.400 of 2008 which stood pending on the file of the Court of IX Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar, C.R.P.No.5718 of 2018 is filed. IA No.1654 of 2017 was filed under Section 5 of Limitation Act, seeking the Court to condone the delay of 193 days in filing application to set aside abatement order.
2. Challenging the docket order, dated 10-08-2018 in IA No.1491 of 2017 in OS No.400 of 2008 that stood pending on the file of the Court of IX Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar, C.R.P.No.6061 of 2018 is filed. IA No.1491 of 2017 was filed under Order 22 Rule 9 C.P.C, seeking to set aside the abatement order. 2
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3. Challenging the docket order, dated 10-08-2018 in IA No.2068 of 2017 in OS No.400 of 2008 that stood pending on the file of the Court of IX Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar, C.R.P.No.5739 of 2018 is filed. IA No.2068 of 2017 was filed, seeking the Court to permit the revision petitioner to come on record as the legal representative of the deceased second plaintiff.
4. Heard the submission of the learned counsel for the revision petitioner as well as the learned counsel appearing for the first respondent who is the defendant to the suit and the respondent in the Interlocutory Applications under challenge.
5. Making his submission, learned counsel for the revision petitioner contended that the revision petitioner is the wife of the second plaintiff to the suit and she filed IA No.1654 of 2017 under Section 5 of Limitation Act, to condone the delay of 193 days in filing the petition to set aside abatement order, she moved another application to set aside abatement order and another petition to permit 3 Dr.CSL, J CRP.No. No.6061, 5718 and 5739 of 2018 her to come on record as the legal representative of the deceased second plaintiff to the suit, she being the wife of the deceased second plaintiff, but the trial Court dismissed all the applications and aggrieved by the same, the present revision petitions are filed.
6. Learned counsel for the petitioner submitted that the request of the revision petitioner was not considered mainly on two grounds. Firstly, that the reasons for the delay in filing applications to bring the legal representatives of the deceased plaintiff No.2 are not properly explained and; secondly, that all the legal representatives were not brought on record. The learned counsel for the revision petitioner contended that the revision petitioner being widow, was living along with her brothers after the death of her husband and she had no knowledge about filing of the suit and on coming to know about the pendency of the suit, she immediately approached her counsel and filed three applications, but without considering the reason urged, they all were dismissed, which is highly 4 Dr.CSL, J CRP.No. No.6061, 5718 and 5739 of 2018 unjustifiable. The learned counsel also contended that there is no necessity for the revision petitioner to include all the other legal representative and it is sufficient if one of the legal representative files an application.
7. Opposing the said submission, the learned counsel for the first respondent contended that the reasons for the delay are not well explained and further a specific plea was taken in the counter that is filed by the first respondent/defendant who is the respondent in the Interlocutory Applications under challenge that the deceased second plaintiff is having two sons and three daughters and though such plea was taken, the revision petitioner who is the wife of the deceased second plaintiff did not take steps to bring them on record and considering the same the request was dishonoured and, therefore, there is no requirement whatsoever to interfere with the orders rendered by the trial Court.
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8. Opposing the said submission, the learned counsel for petitioner contended that even if one of the legal representatives intends to come on record, the said legal representative should be permitted to come on record and, therefore, rejecting the prayer of the revision petitioner is unjustifiable.
9. In this regard, the learned counsel for revision petitioner relied upon the decision rendered by the High Court of Madras in a case between Subramania Pillai vs Masterly1, wherein the Court, at para 3 of the order, observed as follows :
"All that is necessary to see is whether in the execution sale proceedings there was proper representation by the judgment-debtor or his legal representatives. It is not always a legal requisite that, inevitably, only the heirs, all of them or any of them, should figure as legal representatives. The procedural law requiring representation will stand satisfied if there is substantial representation in the sense that all that could be done in defence was done by someone interested in the issue in the suit.
1 AIR 1976 MADRAS 303 6 Dr.CSL, J CRP.No. No.6061, 5718 and 5739 of 2018 Lakshmi in obedience to the summons entered appearance through an advocate and took time. That shows that she participated in the sale proceedings. Raghavan, J., accepted the finding of the Subordinate Judge that Lakshmi substantially represented the widow or widows of Chempakaraman Pillai who were his heirs. That being so we hardly final any cogent reason to differ from the view of Raghavan, J."
10. The learned counsel in this regard also relied upon the decision of the High Court of Patna in a case between Jaggernath Singh v. Narayan Sarog wherein the Court observed as follows :
It appears to me that the words "legal representative" as occurring in Order 22, rule 23, Sub-rule 1 of the Code of Civil Procedure do not mean all the legal representatives and that it is not necessary that an application for brining all the legal representatives on record should be made. The question whether a legatee of a part of an estate answered to the definition of "legal representative"
as given in Section 2(11) of the Code of Civil Procedure was answered by the Supreme Court in the case of Andhra Bank Ltd. v. Srinivasan, AIR 1962 SC 232 in the affirmative, and, in my opinion from the observations made in that case it follows that no question of abatement will arise if one of the several representatives of a deceased representing only a part of his estate in brought on 7 Dr.CSL, J CRP.No. No.6061, 5718 and 5739 of 2018 the record by filing an application as required by Order 22, Rule 3(1) of the Code within the time allowed by law. The application so filed has, however, to be a bona fide application, free from any deliberate suppression of material facts. This having been done in the present case, no question of abatement of the suit whether as a whole or in part could arise. In a recent case Day a Ram v. Shyam Sundari, Civil Appeal No.360 of 1963 : (Reported in AIR 1965 SC 1049), Ayyangar, J. delivering the judgment of the Supreme Court has observed as under :-
"The almost universal consensus of opinion of an the High Courts is that where the plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, that the impleaded Legal Representatives sufficiently represent the estate of the deceased and that a decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record."
11. On the same aspect, the learned counsel also relied upon the decision of the Hon'ble Apex Court in a case between Smt. Gema Coutinho Rodrigues v Bricio 8 Dr.CSL, J CRP.No. No.6061, 5718 and 5739 of 2018 Francisco Pereira and others2 wherein the Court dealt with survival of the suit when one of the Plaintiffs dies.
12. Law in this regard is very well settled under Order 22 C.P.C. It is well settled that there would be no abatement when party's right to sue survives. Also, it cannot be disputed that where the right to sue survives to the surviving plaintiffs or plaintiff alone or against the surviving defendants or defendants alone, suit shall be proceeded with at the instance of the surviving parties. Nowhere, it is laid down that when one of the legal representatives or some of the legal representatives of a deceased party files an application to set aside the abatement and to permit them to come on record, the said request should not be honoured on the ground that some of the legal representatives failed to join.
13. Therefore, this Court is of the view that the trial Court ought to have permitted the revision petitioner herein to participate in the suit proceedings and permitting 2 AIR 1994 SUPREME COURT 1199 9 Dr.CSL, J CRP.No. No.6061, 5718 and 5739 of 2018 the revision petitioner herein, who is the legal representative of the deceased second plaintiff, would not cause any hardship or prejudice either to the surviving plaintiff i.e., first plaintiff or to the defendant.
14. Therefore, this Court is of the view that the orders rendered requires interference and should be set aside.
15. Resultantly, all the three Revision Petitions are allowed.
16. Consequently, the orders rendered by the Court of IX Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar in I.A.No.1654 of 2017, I.A.No.1491 of 2017 and I.A.No.2068 of 2017 in O.S.No.400 of 2008 are set aside, thereby condoning the delay in filing petition to bring the legal representative of deceased plaintiff No.2 on record, setting aside the abatement and permitting the Revision Petitioner to come on record as plaintiff No.3, being the legal representative of the deceased plaintiff No.2 to the suit. No costs.
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17. As a sequel, pending Miscellaneous Applications, if any, shall stand closed.
__________________________________ DR. CHILLAKUR SUMALATHA, J Date: 07.04.2022 Pssk