Karnataka High Court

Smt. Kusuma. B. O vs Sri. D. Erappa on 23 March, 2022

Bench: E.S.Indiresh

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 23rd DAY OF MARCH, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE E.S. INDIRESH

        WRIT PETITION NO.12318 OF 2020 (GM-CPC)

BETWEEN:

 SMT. KUSUMA B. O.
 AGED ABOUT 41 YEARS
 W/O P T HANUMANTHAPPA
 D/O LATE B O ONKARAPPA
 R/AT 3RD MAIN, 13TH CROSS
 OPPOSITE JEEVITHA PROVISION STORES
 VINOBANAGAR
 DAVANAGERE-577066.

                                             ...PETITIONER
(BY SMT. SONA VAKKUND, ADVOCATE FOR
 SRI UMESH M.N., ADVOCATE)

AND:

1.     SRI D ERAPPA
       AGED ABOUT 83 YERAS
       S/O LATE D MAHADEVAPPA
       R/AT DODDABATHI VILLAGE
       DAVANAGERE TALUK
       DAVANAGERE DISTRICT-577566

2.     SRI D REVANASIDAPPA
       AGED ABOUT 72 YEARS
       S/O LATE D MAHADEVAPPA
       R/AT DODDABATHI VILLAGE
                            2




     DAVANAGERE TALUK
     DAVANAGERE DISTRICT-577566

3.   SRI D NAGARAJAPPA
     AGED ABOUT 63 YEARS
     S/O LATE SIDDAIAH
     R/AT DODDABATHI VILLAGE
     DAVANAGERE TALUK
     DAVANAGERE DISTRICT-577566

4.   SRI SIDDAPPA
     AGED ABOUT 75 YEARS
     S/O LATE SIDDAIAH
     R/AT DODDABATHI VILLAGE
     DAVANAGERE TALUK
     DAVANAGERE DISTRICT-577566

5.   SMT REKHA B O
     AGED ABOUT 41 YEARS
     W/O P T HANUMANTHAPPA
     D/O LATE B.O ONKARAPPA
     R/AT OPPOSITE SAI MEDICALS ROAD
     H.K.R CIRCLE, NITUVALLI
     DAVANAGERE-577002

6.   SRI B O PRAKASH
     AGED ABOUT 55 YEARS
     S/O LATE ONKARAPPA
     R/AT SRIRAMANAGARA
     DAVANAGERE CITY -577512

7.   SRI B O YOGESH
     AGED ABOUT 52 YEARS
     S/O LATE ONKARAPPA
     R/AT SRIRAMANAGARA
     DAVANAGERE CITY-577512.
                            3




8.   SRI B O MANJUNATHA
     AGED ABOUT 51 YEARS
     S/O ONKARAPPA
     R/AT SRIRAMANAGARA
     DAVANAGERE CITY-577512

9.   SMT. SUDHA
     AGED ABOUT 49 YEARS
     W/O SIDDESH
     D/O LATE ONKARAPPA
     R/AT SRIRAMANAGARA
     DAVANAGERE CITY-577512

10 . SRI B O UJJESHI
     AGED ABOUT 48 YEARS
     S/O LATE ONKARAPPA
     R/AT DODDABATHI VILLAGE
     DAVANGERE TALUK AND DISTRICT-577566

11 . SMT PARIMALA
     AGED ABOUT 44 YEARS
     W/O KALLESHI
     D/O LATE ONKARAPPA
     R/AT SARJAPURA
     BANGALORE-562125

12 . SRI B O SIDDESHI
     AGED ABOUT 42 YEARS
     S/O LATE ONKARAPPA
     R/AT KAKANUR VILLAGE
     CHANNAGIRI TALUK
     DAVANAGERE DISTRICT-577552

13 . SMT KENCHAMMA
     AGED ABOUT 68 YEARS
     W/O LATE SHEKARAPPA
     R/AT DODDABATHI VILLAGE
     DAVANGERE TALUK AND DISTRICT-577566
                            4




14 . SRI D S RAMESH
     AGED ABOUT 38 YEARS
     S/O LATE SHEKARAPPA
     R/AT DODDABATHI VILLAGE
     DAVANAGERE TALUK AND DISTRICT-577566

15 . SRI D S SATISH
     AGED ABOUT 36 YEARS
     S/O LATE SHEKARAPPA
     R/AT DODDABATHI VILLAGE
     DAVANAGERE TALUK AND DISTRICT-577566

16 . SRI SIDDESHI
     AGED ABOUT 38 YEARS
     S/O LATE KUBERAPPA AND LATE GANGAMMA
     R/AT KAKANUR VILLAGE
     CHANNAGIRI TALUK
     DAVANGERE DISTRICT-577552

17 . SMT. JYOTHI
     AGED ABOUT 36 YEARS
     W/O VEERESH
     D/O LATE GANGAMMA
     R/AT KALLAVVANAGATHIHALLI VILLAGE
     HOLALKERE TALUK
     CHITRADURGA DISTRICT-577518

18 . SMT. LEELA
     AGED ABOUT 38 YEARS
     W/O KUMAR
     D/O LATE GANGAMMA
     R/AT KAKANUR VILLAGE
     CHANNAGIRI TALUK
     DAVANAGERE DISTRICT-577552

19 . SMT SHAKUNTHALAMMA
     AGED ABOUT 65 YEARS
                                  5




     W/O LATE RUDRAPPA
     D/AT LATE SIDDAIAH @ BETHUR SIDDAIAH
     R/AT HARAPANAHALLI
     DAVANAGERE DISTRICT-583131

                                                  ...RESPONDENTS
(BY SRI VIJAY A M, ADVOCATE FOR R1 AND R2;
 SRI GOUTHAM M, ADVOCATE FOR R3 AND R4;
 SMT. PARVATHY NAIR, ADVOCATE FOR R5, 7, 8, 10 TO 19)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 15TH JUNE, 2020 ON INTERIM
APPLICATION    FILED BY THE PETITIONER HEREIN UNDER
SECTION 107(2) R/W SECTION 151 OF CODE OF CIVIL
PROCEDURE BY THE HON'BLE COURT OF THE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, AT DAVANAGERE IN R.A.
NO.142 OF 2017 (VIDE ANNEXURE-A HEREIN) AND ETC.,

    IN THIS WRIT PETITION ARGUMENTS BEING HEARD,
JUDGMENT RESERVED, COMING ON FOR "PRONOUNCEMENT OF
ORDERS", THIS DAY, THE COURT MADE THE FOLLOWING:

                            ORDER

This Writ Petition is filed by the respondent No.3(a) in RA

No.142 of 2017 on the file of the Court of First Additional District

and Sessions Judge, Davangere, challenging the order dated

15TH June, 2020 rejecting the application filed under Section 107

(2) read with Section 151 of Code of Civil Procedure.

2. It is the case of the petitioners herein that, OS No. 56

of 2011 was filed by the respondent No.3 in this Writ Petition

and the plaintiff No.3 is Smt. Sarvamma (mother of the

appellant) in RA No.142 of 2017. The said suit is filed seeking

relief of partition and separate possession in respect of the suit

schedule property. Suit was contested by the defendants. In the

suit, IA.18 was filed to implead the persons mentioned in the

application who were entitled for share in the schedule

properties. The suit came to be decreed by the Trial Court by

judgment and decree dated 17.10.2017 in OS No. 56 of 2011

(Annexure-D) holding that the plaintiff No.1 to 17 are entitled for

one-third share together in the suit schedule property. The said

judgment and decree was challenged before the First Appellate

Court in RA No.142 of 2017. In the said appeal, respondent

No.3(a) filed an application seeking leave of the Court to file

written statement and the said application was resisted by the

contesting appellant and respondents therein. The First

Appellate Court, after considering the material on record, by its

order dated 15th June, 2020, dismissed the application. Feeling

aggrieved by the same, respondent No.3(a) has presented this

Writ Petition. It is also stated that plaintiff No.3-Smt.

Sarvamma, died on 07th October, 2018 during the pendency of

the appeal, and application was filed to bring the legal

representative of the deceased plaintiff No.3. The petitioner

herein is the daughter of the deceased plaintiff No.3. With these

facts on record, I have heard the learned counsel appearing for

the parties.

3. Heard Smt. Sona Vakkund, learned counsel appearing

on behalf of Sri Umesh M.N., for the petitioner; Sri. Vijay A M,

for respondents 1 and 2; Sri Goutham M, learned counsel for

respondents 3 and 4 and Smt. Parvathy Nair, learned counsel for

respondents 5, 7, 8, 10, 11 to 19.

4. Smt. Sona Vakkund, learned counsel appearing for the

petitioner contended that the petitioner herein is legal

representatives of the respondent No.3-Smt. Sarvamma and the

legal representatives have been brought on record in the appeal.

There was no opportunity for the petitioners herein to file written

statement in the suit as she has been left out during the suit

proceedings, and therefore, she submitted that the impugned

order is liable to be quashed. She further contended that the

affidavit which has been referred to by the Appellate court

cannot be a basis to say that her mother-Sarvamma accepted

the share in the suit schedule property. The First Appellate

Court herein ought to have allowed the petitioner to file written

statement and the averments that may be made in the written

statement be useful for the adjudication of the appeal and

therefore, she places reliance on the judgment of the Hon'ble

Apex Court in the case of JAGDISH CHANDER CHATTERJEE AND

OTHERS v. SHRI SRI KISHAN AND ANOTHER reported in

(1972)2 SCC 461 and in the case of BAL KISHAN v. OM

PRAKASH AND ANOTHER reported (1996)4 SCC 155 and argued

that the finding recorded by the First Appellate Court requires

interference in this writ petition.

5. Per contra, Smt. Parvathy Nair, learned counsel

appearing for the respondents 5, 7, 8, 10, 11 to 19 sought to

justify the impugned order.

6. Perusal of the writ papers would indicate that the

plaintiff (respondent No.3 herein) has filed suit for partition and

separate possession in respect of the suit schedule property.

Thereafter, plaintiff has impleaded plaintiffs 2 to 17 as parties to

the suit. Smt. Sarvamma has been arrainged as plaintiff No.3 in

the suit. The suit came to be decreed by the trial Court by

judgment and decree dated 17th October, 2017 holding that the

plaintiffs 1 to 17 are entitled to one-third share together in the

suit schedule property. The said judgment and decree was

challenged by the defendants in RA No.142 of 2017. During the

pendency of the appeal, plaintiff No.3-Sarvamma died on 07th

October, 2018. Before the trial Court, the said Sarvamma filed

affidavit stating that the share of the joint family shall be

devolved among the other children also including the applicant-

petitioner herein. Undisputably, the respondent No.3(a) and (b)

are the children of late Sarvamma and after her death, their

application to contest the matter as legal representatives has

been allowed by the trial Court.

7. I have also carefully considered the judgments referred

to by the learned counsel appearing for the petitioner. In the

case of BAL KISHAN (supra) Hon'ble Apex Court has held that if

the court allows the application of the impleading applicants in

their personal capacity, they cannot be permitted to raise such

inconsistent pleas in the suit. In the case of JAGDISH CHANDER

CHATTERJEE (supra), Hon'ble Apex Court at paragraph 10 of the

judgment has observed thus:

"10. Under Sub-clause (ii) of Rule 4 of Order 22 Civil Procedure Code any person so made a party as a legal representative of the deceased respondent was entitled to make any defence appropriate his character as legal representative of the deceased respondent. In other words, the heirs and the legal representatives could urge all contentions which the deceased could have urged except only those which were personal to the deceased. Indeed this does not prevent the legal representatives from setting up also their own independent title, in which case there could be no objection to the court impleading them not merely as the legal representatives of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the independent title."

8. Perusal of the aforementioned judgment would

substantiate the fact that the heirs of legal representatives

cannot urge the new ground, which is independent of the stand

taken by their guardian.

9. In the light of the aforementioned undisputed facts and

law declared by the Hon'ble Apex Court, I have carefully

considered the additional written statement sought to be

produced by the applicants. It is well established principle that

the legal representatives of the deceased-Sarvamma cannot take

new plea in the additional written statement which is contrary to

the statement/affidavit of the deceased-Sarvamma. In fact, the

said Sarvamma had supported the plaintiffs in the suit for