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2016 DIGILAW 801 (KAR)

Gowramma (Dead) by L. Rs v. Basavaraj G. Patil

2016-10-27

B.VEERAPPA

body2016
ORDER : B. Veerappa, J. The legal representatives of sole defendant have filed the present writ petition against the order dated 16-7-2015 rejecting I.A. No. 22 filed under Order 22, Rules 3 and 4 read with Section 151 of the Code of Civil Procedure, 1908 made in O.S. No. 30 of 2010 on the file of the Senior Civil Judge and Judicial Magistrate First Class, Channagiri. 2. The respondents 1 and 2/plaintiffs filed suit for declaration and permanent injunction contending that they are the owners of the suit schedule property by virtue of exchange deed dated 21-3-2003 and Wills dated 8-1-1994 and 24-3-2003, etc. The defendant denied the plaint averments and contended that the suit filed by the plaintiffs is not maintainable, plaintiffs have no locus standi to file the suit on the basis of the alleged Will as the same is concocted, etc. and prayed for dismissal of the suit. When the matter was posted for arguments, the sole defendant-Smt. Gouramma died. Therefore, the petitioners herein filed an application to come on record as legal representatives of deceased defendant claiming that they are the foster son, brothers and sisters of deceased defendant/late Gouramma who died on 30-1-2015 and they are proper and necessary parties to the proceedings. 3. The said application was resisted by the plaintiffs disputing the relationship of the applicants with the deceased defendant and specifically contended that no documents are produced to prove that the 1st applicant is the adopted son, 1st applicant was not residing with the deceased defendant and she had no legal representatives at all. Therefore, sought for dismissal of the application. 4. The Trial Court considering the application and objections, by the impugned order dated 16-7-2015, proceeded to dismiss the application mainly on the ground that the applicants have not produced any documents to show that they are the foster son, brothers and sisters of the deceased defendant and there is dispute with regard to the relationship of the deceased with the applicants and therefore, in the absence of any documents, application cannot be considered. Hence the present writ petition is filed. Respondents, though served, are unrepresented. 5. I have heard the learned Counsel for the petitioner. 6. Hence the present writ petition is filed. Respondents, though served, are unrepresented. 5. I have heard the learned Counsel for the petitioner. 6. Sri Revanna Bellary, learned Counsel for the petitioners vehemently contended that the impugned order passed by the Trial Court dismissing the application filed under Order 22, Rules 3 and 4 of the Code of Civil Procedure is erroneous and contrary to law. The Trial Court erred in holding that the legal representatives are not necessary and proper parties. Without holding any enquiry as contemplated under law, the Trial Court has proceeded to pass the impugned order and therefore, the same is liable to be set aside and accordingly sought to allow the writ petition. 7. In view of the arguments advanced by the learned Counsel for the petitioners, the only point that arises for consideration is: "Whether the Trial Court is justified in rejecting the application filed under Order 22, Rules 3 and 4 of Code of Civil Procedure without holding any enquiry as contemplated under Order 22, Rule 5 of the Code of Civil Procedure?" 8. I have given my anxious consideration to the arguments advanced by the learned Counsel for the petitioners. 9. It is undisputed fact that the petitioners filed suit for declaration and permanent injunction based on the exchange deed and the Will. Same was denied by the defendant by filing written statement. After completion of the evidence, when the matter was posted for final arguments, the sole defendant died. Therefore, the proposed applicants filed application under Order 22, Rules 3 and 4 of Code of Civil Procedure to come on record as the legal representatives of deceased defendant contending that they are the foster son, brothers and sisters of the deceased defendant. Same was disputed by plaintiffs contending that the deceased Gouramma/defendant died issueless and the applicants have not produced any material documents before this Court to prove that they are the legal representatives of the deceased defendant. 10. The Trial Court, without considering the procedure as contemplated under Order 22, Rule 5 of the Code of Civil Procedure, proceeded to dismiss the application. 11. Order 22, Rule 5 of the Code of Civil Procedure reads as under: "5. 10. The Trial Court, without considering the procedure as contemplated under Order 22, Rule 5 of the Code of Civil Procedure, proceeded to dismiss the application. 11. Order 22, Rule 5 of the Code of Civil Procedure reads as under: "5. Determination of question as to legal representative.—Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court." 12. A plain reading of Order 22, Rule 5 of Code of Civil Procedure makes it clear that it is mandatory on the part of the Court to hold enquiry when application under Order 22, Rules 3 and 4 by any person which is disputed by other party in a pending case. In the present case, during pendency of the proceeding, the sole defendant died and the applicants filed application to come on record as foster son, brothers and sisters, which is disputed by the plaintiffs. When such being the case, it is the duty of the Trial Court to hold an enquiry which is not done. 13. The Hon'ble Apex Court while considering the provisions of Order 22, Rule 5 of Code of Civil Procedure in the case of M/s. Kanhiya Singh Santok Singh and Others v. Kartar Singh (2009)5 SCC 155 has held as under: "19. Thus considering the ambiguous position regarding the status of the appellants relating to their status as tenants, it was necessary for the High Court to remit the matter to the Trial Court for a proper determination of the factual aspects whether the appellants were in fact carrying on business with late Santok Singh at the time of his death by taking evidence and thereafter, come to a finding whether the appellants shall be brought on record in the second appeal as the legal representatives of late Santok Singh." 14. The Hon'ble Supreme Court, while considering the provisions of Order 22, Rules 4 and 5 of the Code of Civil Procedure, in the case of Jaladi Suguna (Deceased) through L.Rs v. Satya Sai Central Trust and Others (2008)8 SCC 521 , held as under: "16. 'The provisions of Rules 4 and 5 of Order 22 are mandatory. The Hon'ble Supreme Court, while considering the provisions of Order 22, Rules 4 and 5 of the Code of Civil Procedure, in the case of Jaladi Suguna (Deceased) through L.Rs v. Satya Sai Central Trust and Others (2008)8 SCC 521 , held as under: "16. 'The provisions of Rules 4 and 5 of Order 22 are mandatory. When a respondent in an appeal dies, the Court cannot simply say that it will hear all rival claimants to the estate of the deceased respondent and proceed to dispose of the appeal. Nor can it implead all persons claiming to be legal representatives, as parties to the appeal without deciding who will represent the estate of the deceased, and proceed to hear the appeal on merits. The Court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits. The Code clearly provides that where a question arises as to whether any person is or is not the legal representative of a deceased respondent, such question shall be determined by the Court. The Code also provides that where one of the respondents dies and the right to sue does not survive against the surviving respondents, the Court shall, on an application made in that behalf, cause the legal representatives of the deceased respondent to be made parties, and then proceed with the case. Though Rule 5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, Rule 4 read with Rule 11 make it clear that the appeal can be heard only after the legal representatives are brought on record. 19. We, accordingly, allow this appeal and set aside the judgment dated 19-9-2006, restore the appeal to the file of the High Court, with the following directions: (i) The High Court shall first decide the dispute between the husband of the deceased on the one hand, and her nieces and nephews on the other, after considering the evidence and findings dated 28-11-2005 recorded by the Trial Court and hearing the rival claimants. (ii) After such determination, the persons determined to be the person/s entitled to represent the estate of the deceased shall be brought on record as the legal representatives of the deceased. (iii) Thereafter, the appeal shall be heard on merits and disposed of in accordance with law." 15. (ii) After such determination, the persons determined to be the person/s entitled to represent the estate of the deceased shall be brought on record as the legal representatives of the deceased. (iii) Thereafter, the appeal shall be heard on merits and disposed of in accordance with law." 15. For the reasons stated above, the issue raised in the present writ petition has to be answered in the negative holding that the Trial Court is not justified in dismissing the application, without holding enquiry, as contemplated under law. 16. For the reasons stated above, the writ petition is allowed. The order dated 16-7-2015 passed on I.A. No. 22 passed in O.S. No. 30 of 2010 on the file of the Senior Civil Judge and Judicial Magistrate First Class, Channagiri, is set aside. The matter is remanded to the Trial Court to reconsider the application and pass orders in accordance with the provisions of Order 22, Rule 5 of the Code of Civil Procedure and in accordance with Law.