Karnataka High Court

Sri Rajashekaraiah @ Shekarappa vs Sri Nanjaiah on 7 March, 2022

Bench: R. Nataraj

                            1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 7TH DAY OF MARCH, 2022

                      BEFORE

        THE HON'BLE MR.JUSTICE R.NATARAJ

 REGULAR SECOND APPEAL NO.1692 OF 2006 (DEC/INJ)

BETWEEN:

SRI. RAJASHEKARAIAH @ SHEKARAPPA
DEAD
REPRESENTED BY HIS LR'S

1.   GANGADARAIAH
     S/O. RAJASHEKARAIAH
     AGED ABOUT 52 YEARS,

2.   SRI. JAYANNA
     S/O. RAJASHEKARAIAH
     AGED ABOUT 41 YEARS

3.   SMT. PARVATHAMMA
     D/O. RAJASHEKARAIAH
     AGED ABOUT 38 YEARS

4.   SMT. MANGALAMMA
     D/O. RAJASHEKARAIAH
     AGED ABOUT 45 YEARS

ALL ARE SONS OF LATE RAJASHEKARAIAH
@ SHEKARAPPA AND ARE
R/AT MAVINAKUNTE,
BELLAVI HOBLI,
TUMKUR TALUK AND DISTRICT
PIN CODE - 572 103.
                             ...APPELLANTS
(BY SRI. V.B.SIDDARAMAIAH, ADVOCATE (THROUGH VC))
                               2


AND:

1.     SRI. NANJAIAH
       S/O. HONNAIAH
       AGED ABOUT 75 YEARS

       DEAD BY LR.,
       SIDDAGANGAMMA
       D/O LATE NANJAIAH,
       W/O MAHADEVAIAH,
       AGED ABOUT 48 YEARS,
       R/AT MAVINAKUNTE VILLAGE,
       BELLAVI HOBLI,
       TUMKUR DISTRICT-572 103.

2.     SMT. NANJAMMA
       W/O GANGADARAIAH
       AGED ABOUT 80 YEARS,
       SINCE DEAD BY LRS.,

2(a)   SMT. HONNAMMA
       W/O LATE SIDDARAMAIAH
       AGED ABOUT 70 YEARS,
       R/O SOMALAPURA VILLAGE,
       NITTUR HOBLI-572223
       GUBBI TALUK, TUMKUR DIST.

2(b)   SRI. NANJUNDAIAH
       S/O LATE GANGADHARAIAH,
       AGED ABOUT 65 YEARS

2(c)   NEELAKANTAIAH
       S/O LATE GANGADHARAIAH,
       AGED ABOUT 55 YEARS

       R2(b) AND R2(c) ARE RESIDING AT
       MAVINAKUNTE VILLAGE
       BELLAVI HOBLI
       TUMKUR TALUK AND DISTRICT-572103

2(d)   SMT. VEERAMMA
       D/O LATE GANGADHARAIAH,
       AGED ABOUT 62 YEARS
       R/O KODIPALYA,
                               3


       THYAMAGONDLU HOBLI,
       NELAMANGALA TALUK-562123
       BANGALORE RURAL DISTRICT.

2(e)   SMT. PUTTAMMA
       D/O LATE GANGADHARAIAH,
       AGED ABOUT 60 YEARS
       R/O MAJJIGE KEMPANAHALLI,
       BELLAVI HOBLI,
       TALUK AND DISTRICT-572103.

2(f)   SRI. SOMANNA
       S/O LATE GANGADHARAIAH,

       SINCE DEAD, REP. BY

2(f)(i) SRI. SHASHIDARA
        S/O LATE SOMANNA
        AGED ABOUT 26 YEARS

2(f)(ii) SMT. GANGAMMA
        W/O LATE SOMANNA
        AGED ABOUT 40 YEARS

       RESPONDENTS 2(f)(i) & (ii) ARE
       R/O MAVINAKUNTE VILLAGE,
       BELLAVI HOBLI,
       TALUK & DISTRICT-572103.

2(f)(iii) SMT. VANAJAKSHI
        D/O LATE SOMANNA
        W/O SHIVASHANKAR,
        OCC: TEACHER,
        AGED ABOUT 22 YEARS,
        R/AT KALLARDAGERE VILLAGE,
        NITTUR HOBLI-577223
        GUBBI TALUK, TUMKUR DISTRICT.

3.     SRI SHIVANNA
       S/O LINGAPPA
       AGED ABOUT 72 YEARS
                             4


4.   SRI. SOMALINGAIAH
     S/O VEERASWAMAIAH
     AGED ABOUT 65 YEARS
     DEAD BY LR.,

     R4(A) RUDRAPPA,
     S/O LATE SOMALINGAIAH,
     AGE:45 YEARS,
     R/AT CHIKKABELLAVI,
     BELLAVI HOBLI-572 103
     TUMAKUR TALUK AND DISTRICT.

5.   SRI SOMANNA
     S/O VEERANNA
     AGED ABOUT 77 YEARS
     DEAD BY LR.,

     5(A) SRI SHIVANANDA
     S/O LATE SOMANNA
     AGED ABOUT 35 YEARS,

6.   SRI. SHIVANANJAIAH
     S/O ANUBASAPPA
     AGED ABOUT 55 YEARS

     RESPONDENT NOS.3 TO 6 ARE
     R/AT MAVINAKUNTE,
     BELLAVI HOBLI,
     TUMKUR TALUK AND DISTRICT-572 103.


                                 ...RESPONDENTS

(BY SRI. LEX NEXUS, ADVOCATE FOR RESPONDENT NO.2(b) -
ABSENT;
SRI. S.C.VIJAYAKUMAR, ADVOCATE FOR RESPONDENT NO.1(a);
SRI. V. ANANDA, ADVOCATE FOR RESPONDENT NOs.3 AND 6;
CAUSE TITLE AMENDED VIDE COURT ORDERS DATED
27.03.2014, 23.06.2021 AND 13.08.2021
NOTICES TO RESPONDENT NOs.2(a), 2(c), 2(d), 2(e), 2(f)(i),
2(f)(ii) AND 2(f)(iii) ARE SERVED;
NOTICE TO PROPOSED RESPONDENT NO.4(a) IS SERVED)
                              5


      THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908
AGAINST THE JUDGMENT AND DECREE DATED 20.04.2006
PASSED IN R.A.NO.9/2006, ON THE FILE OF THE FAST TRACK
COURT-III, TUMKUR, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 04.09.1998
PASSED IN O.S.NO.328/1988 ON THE FILE OF THE II ADDL.
CIVIL JUDGE (JR.DN.) AND JMFC., TUMKUR.

      THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                       JUDGMENT

This appeal is filed by the plaintiffs challenging the

Judgment and Decree dated 20.04.2006 passed by the

Fast Track Court-III, Tumakuru (henceforth referred to as

the 'First Appellate Court') in R.A. No.9/2006 by which it

reversed the Judgment and Decree dated 04.09.1998

passed by the Court of II Additional Civil Judge (Jr. Dn.),

Tumakuru, (henceforth referred to as the 'Trial Court') in

O.S. No.328/1988.

2. When the appeal was listed for final hearing,

the learned counsel for the appellants / plaintiffs submits

that the respondent No.2 herein - Smt. Nanjamma, who

was the appellant in R.A. No.9/2006 died on 01.09.2002,

but the same was not intimated to the First Appellate

Court. He submitted that the appeal was disposed off on

20.04.2006 without bringing the legal representatives of

the deceased respondent No.2 herein on record. He further

submitted that in view of the provisions of Order XXII Rule

3 of the Code of Civil Procedure, 1908, the appeal had

abated and therefore, the impugned Judgment and Decree

passed by the First Appellate Court was non est in the eye

of law.

3. Per contra, the learned counsel for the

respondent No.1(a) submits that the appeal was decided in

favour of the deceased respondent No.2 herein and

therefore, the death of the respondent No.2 herein will not

alter the efficacy of the judgment passed by the First

Appellate Court.

4. There is no representation for respondent

No.2(b).

5. Order XXII Rule 3 of the Code of Civil

Procedure, 1908 reads as follows:

"Procedure in case of death of one of several plaintiffs or of sole plaintiff.-

(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

(2) Where within the time limited by law no application is made under sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff."

6. Since the sole surviving appellant died during

the pendency of R.A. No.9/2006 and her legal

representatives did not prosecute the appeal, the

consequences were bound to follow, namely, that the

appeal stood abated. The legal representatives of the

deceased respondent No.2 herein / appellant in R.A.

No.9/2006 were bound to come on record and pursue the

appeal before the First Appellate Court. The impugned

Judgment and Decree passed by the First Appellate Court

in R.A. No.9/2006, therefore, deserves to be set aside and

the case is to be remanded back to the First Appellate

Court for reconsideration. Now that the legal