Karnataka High Court
Mr Venu S/O A.Srinivasa vs Vasantha D/O Smt.Kanthamma on 5 January, 2023
Bench: N S Gowda
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RFA No. 29 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
REGULAR FIRST APPEAL NO. 29 OF 2007 (INJ)
BETWEEN:
MR.VENU
S/O A.SRINIVASA
AGED ABOUT 28 YEARS,
NO.646-Y, NEW MUTHYALAMMA TEMPLE
16TH MAIN, III BLOCK, RAJAJINAGAR
BANGALORE-560 010
...APPELLANT
(BY SRI.B.S.MAHENDRA, ADVOCATE)
AND:
Digitally
signed by
PANKAJA S VASANTHA
Location: D/O SMT.KANTHAMMA
HIGH COURT MAJOR, R/AT NO.1566, II MAIN,
OF BASAVESWARANAGAR
KARNATAKA
BANGALORE-560 079
...RESPONDENT
(RESPONDENT- SERVED)
THIS RFA FILED U/S 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DT. 20.09.2006 PASSED ON IA.NO.3
IN OS.NO. 1269/1997 ON THE FILE OF THE XI ADDL. CITY
CIVIL JUDGE, CITY CIVIL COURT, BANGALORE (CCH-8),
DISMISSING THE IA FILED U/O 22 RULE 3 AND ETC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RFA No. 29 of 2007
JUDGMENT
1. Avalappa, the grandfather of the appellant - Venu,
instituted a suit against Vasantha and sought for decree of
injunction in respect of property bearing No.29/1 of
Saneguruvanahalli, Bangalore, measuring East to West 30' and
North to South 11'.
2. It was the case of Avalappa that he was in possession of
the suit schedule property and Vasantha was interfering with
his possession. It was his case that Vasantha had claimed to be
the wife of his son Srinivasa and had instituted proceedings in
M.C.No.198/1993, which was dismissed holding that there was
no relationship of husband and wife. He contended that in the
said proceedings Vasantha had indicated that she was residing
at premises No.1566, 2nd Main Road, Kamala Nagar, Bengaluru,
which was different from the suit schedule property. He
contended that after losing the case before the Family Court,
Vasantha sought to enter upon possession of the suit schedule
property and had made an attempt to let out the same to the
school. He contended that with the support of some rowdy
RFA No. 29 of 2007
elements, she made an attempt to enter upon the possession of
property marked with 'A', 'B', 'E' and 'F' in the plaint sketch and
a portion of the wall had also been demolished by Vasantha
while trying to claim possession of the property.
3. The suit was resisted by Vasantha by filing a written
statement. She contended that she was in lawful possession of
the suit schedule property and a certificate had also been
issued stating that she was in possession pursuant to the
survey conducted. She contended that since she was in
possession lawfully, the suit for injunction was not
maintainable. She also contended that in the guise of seeking
for a decree of injunction, the plaintiff was essentially seeking
for declaratory relief without paying necessary court fee and
therefore, the suit was not maintainable.
4. During the pendency of the suit, Avalappa passed away
on 11.04.2003. His grandson - Venu/appellant herein filed an
application seeking to come on record as the legal
representative of Avalappa. The appellant - Venu contended
that a registered Will had been executed in his favour, as a
RFA No. 29 of 2007
result of which, he had become the legal representative of
Avalappa and was entitled to prosecute the suit.
5. The Trial Court, on consideration of the said application,
came to the conclusion that the suit, being one for injunction,
on the death of Avalappa, would not survive for consideration.
It accordingly proceeded to not only reject the application of
the appellant herein, but also proceeded to dismiss the suit.
6. Learned counsel for the appellant contends that the suit
for injunction would not abate merely because the plaintiff died.
He submitted that so long as the right to sue survives, the
appellant, being the legal representative of the deceased
Avalappa, was entitled to continue the suit.
7. The respondent though served has remained
unrepresented.
8. This Court in RSA.No.743/2011 disposed of on
11.04.2022 has already held that a suit for injunction would not
come to an end on the death of the plaintiff and if the right to
sue survives, the same can be continued by the legal
RFA No. 29 of 2007
representatives especially when the subject matter of the suit
was an immovable property.
9. In view of the aforesaid decision, the reasoning of the
Trial Court that the suit for injunction would abate on the death
of the plaintiff cannot be sustained.
10. In the result, the appeal is allowed. The impugned
judgment and decree is set aside and the matter is remitted
back to the Trial Court to consider the application of the
appellant/Venu to come on record as the legal representative of
Avalappa and decide the matter in accordance with law.
SD/-
JUDGE
PKS
CT:AN
