Vamaraju Chakrapani v. Sivalenka Radhakrishna (died)
2006-09-26
L.NARASIMHA REDDY
body2006
DigiLaw.ai
ORDER These two revisions are filed by the same petitioner against the same respondents. The subject matter is identical. Hence, they are disposed of through a common order. 2. Sivalenka Radhakrishna and the 2nd respondent herein, filed O.S.Nos.365 of 1990 and 66 of 1999, in the Court of II Additional Senior Civil Judge, Vijayawada, against the petitioner herein and three others, in relation to the affairs and administration of M/s. Nageswara Rao Estates limited. Sivalenka Radhakrishna died. His wife and son, sought to come on record, as legal representatives. They filed I.A. Nos. 1153 and 1154 of 2005, in the two suits referred to above, under Order 22 Rule 3, read with Section 151 C.P.C. and Rule 28 (sic. 29) of Civil Rules of Practice. The applications were opposed by the petitioner and other defendants in the suit, by stating that the relief claimed by the deceased-1st plaintiff was personal to him, and his legal representatives cannot be permitted to come on record. Through different, but identical orders, dated 10-3-2006, the trial court allowed the applications. Hence, these two Revisions. 3. Sri S.V.Bhatt, learned counsel for the petitioner, submits that the relief claimed in the suits was a declaration, to the effect that the deceased-1st plaintiff and the 2nd plaintiff continue to be the directors of the company and that the petitioner, his wife and brother, who too were made parties to the suit, do not have any subsisting interest, in the said company. He contends that the relief is personal to the plaintiffs, and on the death of the 15t plaintiff, necessary steps are required to be taken, in accordance with the provisions of the Companies Act. Learned counsel points out that the trial court was not justified in allowing the applications filed before it. 4. Sri Pottigari Sridhar Reddy, learned counsel for the contesting respondents, on the other hand, submits that the deceased-1st plaintiff was representing the interests of the joint family in the company, and that his clients are intending to come on record, as legal representatives. 5. For one reason or the other, a suit filed in the year 1990 remained undisposed. The passage of time would bring about its own complications in the adjudicatory process, and the present proceedings have only demonstrated it.
5. For one reason or the other, a suit filed in the year 1990 remained undisposed. The passage of time would bring about its own complications in the adjudicatory process, and the present proceedings have only demonstrated it. It is hoped that, at least, now the parties and the trial court would realize the necessity to bestow the required attention for the disposal of the suits. 6. The 1st plaintiff in both the suits died on 4-8-2005. His legal representatives filed applications, seeking permission to come on record as plaintiffs 3 and 4, in both the suits. The objection raised by the petitioner herein that the relief claimed in the suit was personal to the deceased-1st plaintiff, did not weigh with the trial court. 7. Order 22 C.P.C., which deals with the consequences of death, marriage and insolvency of parties to the proceedings before the courts, starts with a statement that the death of a plaintiff or defendant shall not lead to abatement of the suit, if the right to sue survives (Rule 1). In a way, it suggests that continuance of the proceedings, even after the death of a party to a suit, is rule, and abatement thereof, is an exception. Other rules of Order 22 C.P.C., prescribe the procedure to be followed, in the matter of bringing the legal representatives on record, and the consequences of failure in taking such steps. 8. It must be recognized that permission accorded to the legal representatives of a deceased party to the suit, to come on record, is for the most part of it, a step, to enable them, to continue the proceedings, till the formal conclusion. In certain cases, depending upon the nature of opposition offered to such claims, adjudication of the rights of the parties, to succeed to the interest of the deceased, may also ensue. Here again, a caveat is to be recorded to the effect that such an adjudication does not affect the rights of the other persons, who are not impleaded as parties. 9. Even from a bare reading of Rule 1 of Order22 C.P.C., it is evident that the death of a party to a suit would result in abatement, if the right to sue does not saritive.
9. Even from a bare reading of Rule 1 of Order22 C.P.C., it is evident that the death of a party to a suit would result in abatement, if the right to sue does not saritive. The question as to whether the relief claimed by the deceased party was personal to him, if so, the character thereof, is something, which cannot be answered instantly, without examining the contentions of the parties, together with the supportive material. A finding on such a question can be recorded only thereafter. In some cases, the adjudication into this aspect may be either equal to, or more cumbersome than the adjudication of the entire dispute, in the suit. When serious objection is raised as to the permissibility of the legal representatives, to come on record, on account of the death of a party, the most advisable course would be to decide the same, as one of the issues, in the suit itself. If independent enquiry is to be undertaken, through the process of recording the evidence, and a series of remedies in the hierarchy of appeals, etc., is to take place, there is every likelihood of the duration of pendency of the suit becoming doubled. 10. One may tend to insist that the adjudication into this limited aspect would absolve the parties, and the court of undergoing or undertaking, as the case may be, the ordeal of full trial. Howsoever attractive the proposition may be, the practical difficulties in this are plenty. 11. By its very nature, the adjudication into this aspect, needs recording of evidence, advancement of arguments and appreciation of the same by a court, in its order. Under the scheme of CPC, it is only questions of law that can be taken up for adjudication, as preliminary issues. It is impermissible to decide any issues, which are questions of fact or mixed questions of fact and law, to be taken up for determination, as preliminary issues. Therefore, the inescapable conclusion is that, if the petitioner had any objection for the granting of permission to the legal repr!3sentatives of the deceased-1st plaintiff, to come on record, it can be dealt with, under issues that can be framed for this purpose. It is axiomatic that if an issue is framed straight away, evidence has to be recorded upon it, without the necessity of amendment of the pleadings. 12.
It is axiomatic that if an issue is framed straight away, evidence has to be recorded upon it, without the necessity of amendment of the pleadings. 12. For the foregoing reasons, the Civil Revision Petitions are disposed of, upholding the orders under revision, but directing that the trial court shall frame the following additional issues, in both the suits. (a) Whether the relief claimed by the deceased-1st plaintiff was personal to him, or was inheritable? and ; (b) Whether the death of the 1st plaintiff brings about any abatement vis-a vis his claim, or whether it is competent for his legal representatives, to continue the proceedings. Having regard to the fact that the suits are pending for more than a decade, the trial court shall endeavour to dispose of the same, by 31-12-2006. There shall be no order as to costs.