THE HON'BLE SMT. JUSTICE P.SREE SUDHA
I.A. NO.1, 2 and 3 of 2023
In/and
SECOND APPEAL No.910 of 2007
COMMON ORDER:
I.A.No.1 of 2023 is filed to condone the delay of 3509 days
in filing the Legal Representative petition to bring the legal
representative of the sole appellant on record.
2. I.A.No.2 of 2023 is filed to set aside the abatement of the
appeal against the sole appellant.
3. I.A.No.3 of 2023 is filed to permit the petitioner No.2
therein to bring on record as appellant No.2, being legal
representative of petitioner No.1/Sole appellant.
4. In I.A.No.3 of 2023, the proposed appellant No.2/C.Sri
Ram filed an affidavit stating that his mother/sole appellant
filed S.A.No.910 of 2007 challenging the judgment and decree
dated 23.04.2007, in A.S.No.332 of 2002 on the file of XIII
Additional Chief Judge (FTC), City Civil Court, Hyderabad, in
which the judgment and decree dated 23.09.2002 in
O.S.No.5117 of 1995 on the file of IX Junior Civil Judge, City
IA No.1, 2, 3 of 2023 in/and SA.No.910of 2007
2
Civil Court, Hyderabad was confirmed. He stated that his
mother/appellant executed a Will dated 19.09.2009, wherein
she bequeathed the suit schedule property in his favour, as
such it is necessary to bring him on record as Legal
Representative of the sole appellant. He has also enclosed a
copy of the death certificate showing that his mother died on
23.03.2011. He further stated that he came to know about the
pendency of the appeal only upon the intimation of the counsel
in the month of January, 2023. Prior to that he was not aware
of the pendency of the appeal, as such he filed an application in
I.A.No.1 of 2023 to condone the delay of 3509 days in filing the
Legal Representative petition to bring him on record and also
filed I.A.No.2 of 2023 to set aside the abatement of the appeal
against the sole appellant and I.A.No.3 of 2023 to permit the
petitioner No.2 to bring on record as appellant.
5. In the counter filed by respondent No.3 in all the Interim
Applications, he stated that the main appeal has become infructuous as the sole appellant died on 23.03.2011. Petitioner No.2/proposed appellant is the second son of the deceased C.Leelamma. Execution of the Will on 19.09.2009 bequeathing the properties in favour of the petitioner No.2/proposed legal IA No.1, 2, 3 of 2023 in/and SA.No.910of 2007 3 representative does not have any bearing either on the main appeal or in these petitions. Informing the listing of the case by the counsel would not be a date of knowledge and that date cannot be taken as starting point for filing the petition. The petitioner/proposed appellant is a practicing advocate and having no knowledge about the pendency of the appeal is not an excuse. The Will Deed shows that deceased has 3 sons and a daughter. One son died before the execution of the will and the surviving sons i.e. C.Narsing Rao, C.Sriram (Petitioner) and a daughter Savitri Bai, C.Rama Devi W/o Late Satyanarayana (elder daughter in law of Late C.Leelamma), C.Anil kumar, C.Chandrakala, C.Pallavi being the grand children of Leelamma and children of late Satyanarayana who was elder son of Late C.Leelamma have to be brought on record as Legal Representatives. Basing on the Will Deed, petitioner No.2/proposed appellant cannot be allowed to be brought on record as sole legal representative of the deceased appellant. The Will Deed was never a part of the record either before this Court or before the lower Courts and cannot be treated as sole instrument for treating the petitioner No.2/proposed appellant as Legal Representative of the deceased appellant.
IA No.1, 2, 3 of 2023 in/and SA.No.910of 2007 4
6. He further submitted that in the total affidavit petitioner No.2 did not state as to why the delay was caused for filing the legal representative and set aside abatement petitions. In the absence of reason for cause of delay of 12 years, these petitions deserve to be dismissed. The Legal Representative petition and set aside abatement petition are to be dismissed, as all the surviving children and children of the deceased son of the appellant are not made as proposed legal representatives of the deceased. The main Second Appeal is filed against the concurrent findings of both the Courts and appellant lost her case of declaration and recovery of possession in both the Courts. The present applications are filed with extraordinary delay only to drag on the matter and to cause harassment to the respondents and nothing else. In these circumstances, these petitions are devoid of merits and to be dismissed with costs.
7. Heard arguments of both sides and perused the entire evidence on record.
8. O.S.No.5117/1995 was filed by C.Leelamma for perpetual injunction in December, 1995, written statement was filed on 19.1.2000 and the suit was dismissed on 23.09.2002. Aggrieved by the said Judgment, she preferred an appeal in A.S.No.332 of IA No.1, 2, 3 of 2023 in/and SA.No.910of 2007 5 2002 and the same was also dismissed on 23.04.2007. Aggrieved by the concurrent findings of both the Courts, she preferred the Second Appeal on 26.07.2007 and during the pendency of the Second Appeal, she died.
9. A memo was filed on behalf of the appellant on 27.11.2012, in which it was stated that respondent No.4 remained exparte in A.S.No.332 of 2002 and he was not claiming any relief against the appellant.
10. The petitioner No.2 herein is an advocate and aged about 50 years as on the date of filing these petitions before this Court. Therefore it cannot be said that he has no knowledge of the proceedings before the First Appellate Court in the year 2002 and also the suit before the trial Court in the year 1995. Moreover, suit was filed by his mother and he might have been looking into the legal proceedings before both the Courts on behalf of his mother. It is a simple suit for injunction, filed by C.Leelamma, when it was dismissed, she filed the Appeal, before the first appellate Court, even after the dismissal of the first appeal, she filed Second Appeal. It clearly shows that she could not have continued the litigation till the stage of Second Appeal without the active cooperation of the present petitioner No.2 IA No.1, 2, 3 of 2023 in/and SA.No.910of 2007 6 herein, who is an advocate. She died in the year 2011 during the pendency of the Second Appeal and he stated that she executed the Will on 19.09.2009. It is mainly contended that the Will was executed in his favour, as such he should be brought on record as Legal representative. Respondent mainly contended that there are other Legal representatives, but the petitioner herein basing on the Will intended to come on record as a sole legal representative and it is not proper. If at all C.Leelamma has executed Will in the year 2009, she should have filed it in the Court before 2011, as she survived for nearly 3 years even after the execution of the Will and thus it blatantly appears that after the death of the appellant, he came up with all these petitions to gain wrongfully and to protract the litigation. Admittedly she filed suit for injunction before the Trial Court and it was dismissed by both the Courts, even then she preferred Second Appeal in the year 2007 and she executed the alleged Will in the year 2009. Though she survived till 2011, he kept quiet till 2023 and simply stated that when the counsel on record informed him about the listing of the case, then only he came to know about the suit. As such, he filed the Interim Applications to condone the delay and to set aside the abatement and to bring him as Legal Representative on record.
IA No.1, 2, 3 of 2023 in/and SA.No.910of 2007 7 The reason stated by him for an abnormal delay of 3509 days i.e. for more than 9 years is neither convincing nor satisfactory, more over, there are other Legal representatives. Though the appellant C.Leelamma was having two more sons and a daughter, he intended to come alone on record as Legal Representative, as such all the petitions filed by him are devoid of merits and are to be dismissed.
11. In the result, as the Second Appeal is filed by C.Leelamma and she died in the year 2011 and her Legal Representatives were not brought on record in time, the applications filed before the Court in I.A.Nos.1, 2 and 3 of 2023 are dismissed. As such S.A.No.910 of 2007 is also liable to be dismissed.
12. Accordingly, the present Second Appeal is dismissed as abated. No Costs.
Pending miscellaneous applications, if any, shall stand closed.
___________________________ JUSTICE P.SREE SUDHA Date: 19.09.2023 BV