Karnataka High Court
Ratna @ Nagarathnamma vs Gundaiah Dead By Lrs on 16 August, 2023
Bench: H T Prasad
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MFA No. 1853 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 1853 OF 2021 (CPC)
BETWEEN:
1. RATNA @ NAGARATHNAMMA
DEAD BY HER LEGAL REPRESENTATIVES
SIDDAPPA
S/O LATE LAKSHMINARASAIAH
AGED ABOUT 75 YEARS.
2. SRINIVASAMURTHY
S/O SIDDAPPA
AGED ABOUT 44 YEARS
APPELLANT Nos. 1 & 2 ARE
R/O MADALERIPALYA, URDIGERE HOBLI
TUMAKURU TALUK
Digitally signed TUMAKURU DISTRICT 572140.
by
DHANALAKSHMI
MURTHY 3. THOLASAMMA
Location: High W/O MARUTHI
Court of D/O SIDDAPA
Karnataka
AGED ABOUT 42 YEARS
R/O NO 1639, 4TH CROSS
SANJEEVININAGAR
SAHAKARNAGAR POST
BENGALURU 560092.
4. RAVI KUMAR
S/O SIDDAPPA
AGED ABOUT 40 YEARS
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MFA No. 1853 of 2021
R/O MADALERIPALYA, URDIGERE HOBLI
TUMAKURU TALUK
TUMAKURU DISTRICT 572140
5. SAVITHA
W/O SRINIVASA
D/O SIDDAPPA
AGED ABOUT 38 YEARS
R/O NAYAKARAPALYA VILLAGE
SEETHAKAL POST, URDIGERE HOBLI
TUMAKURU TALUK
TUMAKURU DISTRICT 572140.
...APPELLANTS
(BY SRI. VIJAYA KUMAR K., ADVOCATE)
AND:
1. GUNDAIAH
DEAD BY LRS
NARASAMMA
W/O LATE GUNDAIAH
AGED ABOUT 65 YEARS.
2. CHIKKEERAIAH
S/O LATE GUNDAIAH
AGED ABOUT 42 YEARS
R1 & R2 ARE RESIDING AT
CHIKKATHOTLUKERE VILLAGE
KORA HOBLI, TUMAKUR TALUK-572128.
3. NAGARATHNA
W/O NARASHIMAMURTHY
D/O LATE GUNDAIAH
AGED ABOUT 41 YEARS
R/O MADALERIPALYA
URDIGERE HOBLI, TUMAKURU TALUK
TUMAKURU DISTRICT 572140.
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MFA No. 1853 of 2021
4. LEELAVATHI
W/O RANGASWAMAIAH
D/O LATE GUNDAIAH
AGED ABOUT 38 YEARS
R/A BEVINAHALLIPALAYA VILLAGE
KOLALA HOBLI,KORTGERE TALUK
TUMKURU DISTRICT-572140.
5. HONNADEVI @ VANAJAKSHI
D/O LATE GUNDAIAH
W/O RAVI KUMAR
AGED ABOUT 36 YEARS
R/AT PUTTASHAMAIAHNA PLAYA,
SIRAGATE, TUMKUR-572106.
6. KEMPAIAH
DEAD BY LRS
OBALAMMA
W/O LATE KEMPAIAH
AGED ABOUT 63 YEARS.
7. NAGAMMA
D/O LATE KEMPAIAH
W/O HANUMANTHARAYAPPA
AGED ABOUT 38 YEARS
8. KEMPAMMA
D/O LATE KEMPAIAH
W/O RANGASWAMAIAH
AGED ABOUT 36 YEARS.
9. GOWRAMMA
D/O LATE KEMPAIAH
AGED ABOUT 34 YEAR
10. NAGESH
S/O LATE KEMPAIAH
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MFA No. 1853 of 2021
AGED ABOUT 31 YEARS
ALL ARE RESIDENTS OF
CHIKKATHOTLUKERE VILLAGE
KORA HOBLI, TUMAKURU TALUK-572128
...RESPONDENTS
(BY SRI.PRAVEEN R., ADVOCATE FOR
SRI. PRADEEP H.S., ADVOCATE FOR R1 & R2:
SRI. SURESH S, ADVOCATE FOR R6 TO R10:
NOTICE TO R3 TO R5 SERVED & UNREPRESENTED)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(k) OF
CPC, AGAINST THE ORDER DATED 04.09.2020 PASSED
IN R.A.Mis.NO. 39/2016 ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE AND CJM, TUMAKURU,
REJECTING THE PETITION FILED UNDER ORDER 22 RULE
9(2) OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal under Order 43 Rule 1(k) of CPC is filed
by the appellant-defendant No.2 challenging the order
dated 4.9.2020 passed by the Additional Senior Civil
Judge, Tumakuru in R.A.Misc.No.39/2016 filed under
Order 22 Rule 9(2) of CPC, whereby the First Appellate
Court has dismissed R.A.Misc.No.39/2016.
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2. For the sake of convenience, the parties are referred
to as per their ranking before the Trial Court.
3. The plaintiff filed the suit i.e., O.S.No.8/2002
seeking relief of partition and separate possession. The
said suit came to be decreed by judgment and decree
dated 28.3.2008. Being aggrieved by the same, defendant
No.2 filed R.A.No.42/2009 under Section 96 of CPC before
the First Appellate Court. During the pendency of
R.A.No.42/2009, the plaintiff and defendant No.1, who are
respondent Nos.1 and 2 before the First Appellate Court,
died. Since no steps were taken to bring the legal
representatives of deceased plaintiff and defendant No.1
on record within the stipulated time, R.A.No.42/2009 came
to be dismissed as abated on 23.7.2016. Hence, the
defendant No.2 filed R.A.Mis.No.39/2016 under Section 22
Rule 9(2) of CPC. Along with the said petition, two
separate applications were filed under Order 22 Rule 4 of
CPC to bring the legal representatives of plaintiff and
defendant No.1 on record. There was delay in filing the
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MFA No. 1853 of 2021
legal representatives applications. However, the
applications under Order 22 Rule 4 of CPC for bringing the
legal representatives were filed without filing the
applications under Section 5 of the Limitation Act to
condone the delay in filing the legal representatives
applications. Therefore, the First Appellate Court by
impugned order dated 4.9.2020 dismissed
R.A.Misc.39/2016 and applications filed under Order 22
Rule 4 of CPC were rejected. Being aggrieved by the same,
the defendant No.2 is before this Court.
4. The learned counsel for the appellant-defendant
No.2 has contended that by oversight, the applications
under Section 5 of the Limitation Act seeking for
condonation of delay in filing the legal representatives
applications were not filed before the First Appellate Court.
If an opportunity is given to the defendant No.2 and
matter is remanded to the First Appellate Court, the
defendant No.2 would file necessary applications.
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5. The learned counsel for the respondent Nos.1 and 2-
legal representatives of plaintiff has contended that
defendant No.2 to drag the matter has not filed any
applications seeking for condonation of delay. Since there
was delay in filing the legal representatives applications,
the First Appellate Court by impugned order has rightly
rejected the petition. Hence, he sought for dismissal of the
appeal.
6. Heard the learned counsel appearing for the parties.
Perused the impugned order.
7. It is not in dispute that the suit i.e., O.S.No.8/2002
is filed seeking for relief of partition and separate
possession. The said suit came to be decreed by judgment
and decree dated 28.3.2008. Being aggrieved by the
same, defendant No.2 filed R.A.No.42/2009 under Section
96 of CPC before the First Appellate Court. During the
pendency of the appeal, the plaintiff and defendant No.1
died. Since no steps were taken to bring the legal
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MFA No. 1853 of 2021
representatives of deceased plaintiff and defendant No.1
on record within the stipulated time, the appeal filed under
Section 96 of CPC came to be dismissed as abated on
23.7.2016. Hence, the defendant No.2 filed
R.A.Mis.No.39/2016 under Section 22 Rule 9(2) of CPC
and along with the said petition, two separate applications
were filed under Order 22 Rule 4 of CPC to bring the legal
representatives of plaintiff and defendant No.1. Since
there was delay in filing the legal representatives
applications, applications under Section 5 of the Limitation
Act to condone the delay in filing the legal representatives
applications have not been filed. Therefore, the First
Appellate Court by impugned order dated 4.9.2020 has
rightly dismissed R.A.Misc.39/2016.
8. However, under the facts and circumstances of the
case and keeping in mind the interest of the parties, this
court is of the opinion that the matter deserves to be
remanded to the First Appellate Court with liberty to the
defendant No.1 to file applications under Section 5 of the
Limitation Act to condone the delay in filing the legal
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MFA No. 1853 of 2021
representatives applications with a direction to the First
Appellate Court to reconsider the applications filed for
bringing the legal representatives on record, in accordance
with law.
9. Hence, I pass the following order:
ORDER
a) The appeal is allowed.
b) The order dated 4.9.2020 passed by the
Additional Senior Civil Judge, Tumakuru in
R.A.Misc.No.39/2016 filed under Order 22 Rule
9(2) of CPC Trial Court, is set aside.
c) The applications filed under Order 22 Rule 4 of
CPC for bringing the legal representatives of
deceased plaintiff and defendant No.1, is
restored.
d) The defendant No.2 is directed to file
applications under Section 5 of the Limitation Act
seeking to condone the delay in filing the legal
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representatives applications, within two weeks
from today.
e) If such applications are filed, the First Appellate
Court is directed to consider the said applications
and applications filed under Order 22 Rule 4 of
CPC, in accordance with law and thereafter pass
appropriate orders.
Sd/-
JUDGE
DM
