Andhra Pradesh High Court - Amravati
Bhatraju Rama Rao Died Per Lrs A 2 To 4 vs Chunduru Viswanatham on 13 November, 2024
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
MAIN CASE No. A.S.No.1708 of 2002 and Tr.A.S.No.3828 of 2004
PROCEEDING SHEET
Sl. DATE ORDER OFFICE
No. NOTE
41. 13-11-2024 VGKR, J
I.A.No.4 of 2024
In
Tr.A.S.No.3828 of 2004
The petitioners filed the petition under
order XXII Rule 4 of C.P.C. r/w 28 of C.R.P.
and Section 151 of Civil Procedure Code, by
praying the Court, to add the proposed
parties 6th respondent as respondent No.17
to 19 as they are the being legal
representatives of the deceased.
The brief averments in the affidavit
filed by the petitioners is that, he came to
know through nearest relative that, the 6th
respondent died recently on 28.09.2024, at
Hyderebad, leaving behind his wife, son and
daughter as legal representatives, and that
he was constrained to file this application to
bring the legal representatives on record for
impleading them as parties.
Learned counsel for the respondents
filed counter-affidavit and contend that the
2nd respondent purchased the suit schedule
property in the year 1956, under Ex.B5 and
her husband i.e., 1st respondent died at
about 11 years ago and the 2nd respondent
predeceased her husband at about 3 or 4
years near to death of the
1st respondent. The respondent contended
in the counter affidavit that, the 2nd
respondent sold the property to the
respondent Nos.3 and 4 under Ex.B11
Registered Sale Deed dated 30.04.1998, and
the respondent No.3 and 4 are now having
title, since more than 25 years to the
knowledge of the respondents. He
contended that, none of the respondents
have filed any suit against the respondent
No.3 and 4, questioning the title of the
respondent Nos.3 and 4. He further
contended that, now the proposed parties
being the legal representatives of deceased
respondent No.6 cannot claim any right, in
the suit schedule property.
Learned counsel for the respondents
has placed a reliance in the Judgment
passed by the Composite High Court of
Andhra Pradesh at Hyderabad, in a case of
Koneti Ramachandra and others
Vs. Special Officer-cum-Principal
District Munisif and others1 and also
(2007) 6 ALD 22 : (2007) 2 APLJ 140
placed another reliance of this Court i.e.,
Vantaku Appalnaidu and others
Vs. Peddinti Demudamma and
another2.
The ratio laid down, in the aforesaid
case laws has no disputes and the learned
counsel for the appellants would contend
that "the concern of the appellate Court is
mainly confined to an examination of the
correctness of the Judgment of the lower
Court by reference to the applicable law and
the material already gathered. The hearing
of an appeal and rendering of a Judgment,
would not suffer in any way for failure to
bring the legal representatives of the
deceased".
In a case of Koneti Ramachandra
and others Vs. Special Officer-cum-
Principal District Munisif and others as
stated supra, the composite High Court of
Andhra Pradesh held as follows:
The law is also well settled that where
in a proceeding a party dies and one
of the legal representatives is already
on record in another capacity, the
proceeding will not abate.
Learned counsel for the respondents
would contend that, the petitioners are filing
(1982) AIR (AP) 281 :
the petitions one after another and that the
appeal proceedings are being delayed.
Learned counsel for the
petitioners/appellants has also placed a
reliance in a case of Rameshwar Prasad
and others Vs. Shambehari Lal
Jagannath and another3 held as follows:
P.15 "The abatement of an appeal
means not only that the decree
between the appellant and the
deceased respondent has
become final, but also, as a
necessary corollary, that the
appellate Court cannot, in any
way, modify that decree directly
or indirectly. The reason is
plain. It is that in the absence
of the legal representatives of
the deceased respondent, the
appellate Court cannot
determine anything between
the appellant and the legal
representatives which may
affect the right of the legal
representatives under the
decree. It is immaterial that the
modification which the Court
will do is one to which
exception can or cannot be
taken."
"Order XXII operates during the
pendency of an appeal and not
at its institution. If some party
dies during the pendency of the
appeal, his legal
representatives have to be
brought on the record within
AIR 1963 SC (1901)
the period of limitation. If that
is not done, the appeal by the
deceased appellant abates and
does not proceed any further.
There is thus no inconsistency
between the provisions of R. 9
of O.XXII and those of R. 4 of
O.XLI, C.P.C. They operate at
different stages and provide for
different contingencies. There is
nothing common in their
provisions which make the
provisions of one interfere in
any way with those of the
other".
Perused the material available on
record.
The appellant herein is the plaintiff in
the suit and the said suit was dismissed on
hearing by the trial Court and aggrieved
thereby, the defendant filed an appeal, the
recitals in the plaint instituted by the
appellant herein is that, the respondent
No.1/defendant No.1 has purchased the suit
schedule property in the name of his wife
i.e., respondent No.2/defendant No.2. It is
also needless to say that, the suit has
instituted before the trial Court, seeking
relief of „Specific Performance of Agreement
of Sale‟.
Even according to the case of the
plaintiff, the original owner is the 2nd
respondent and the respondent No.2 died
and her legal representatives i.e.,
respondent No.5 to respondent Nso.12 are
to be brought on record. The respondent
No.6 is none other than the son of the
respondent Nos.1 and 2.
On considering the aforesaid
circumstances, I am of the considered view
that, in case if this application is allowed, no
prejudice will be caused to the respondents
because, they are none other than the wife,
son and daughter of the deceased
respondent No.6, who is none other than
the son of the respondent Nos.1 and 2.
For the reasons stated in the
accompanying affidavit, this application is
ordered.
Registry is instructed to make
necessary amendments.
Learned counsel for the petitioners is
permitted to take out personal notice to the
proposed srespondents through Registered
Post with Acknowledgment Due and file
proof of service before the Registry and get
ready for enquiry in the Interlocutory
Application (I.A.No.4 of 2024) itself.
_______
VGKR, J
And
For final hearing, post these matters
on 28.11.2024.
_______
VGKR, J
CVD
