Karnataka High Court
Smt Mangamma vs Smt Sridevi B on 15 June, 2023
Bench: H.P.Sandesh
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CRP No. 222 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU R
DATED THIS THE 15TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CIVIL REVISION PETITION NO. 222 OF 2023 (IO)
BETWEEN:
1. SMT. MANGAMMA
W/O. LATE KRISHNAPPA
AGED ABOUT 66 YEARS,
2. SRI M. NARASIMHULU
S/O. LATE KRISHNAPPA
AGED ABOUT 43 YEARS,
3. SRI M. ANAND
S/O. LATE KRISHNAPPA
AGED ABOUT 34 YEARS,
PETITIONER NOS.1 TO 3 ARE
RESIDING AT NO.2-1,
CHINNAPPAREDDYPALLI
RAMASAMUDRAM MANDALAM,
KAPPALLE GRAMA PANCHAYAT
Digitally signed ANNAMAYA DISTRICT-517- 417.
by SHARANYA T
Location: HIGH
...PETITIONERS
COURT OF
KARNATAKA (BY SRI R. SUBRAMANYA , ADVOCATE FOR
SRI VARUN R.R., ADVOCATE)
AND:
1. SMT. SRIDEVI B.
W/O. LATE TULASI KUMAR M.
@ TULASI KUMAR MELUPAKA
AGED BOUT 27 YEARS
2. KUM. LIKHITHA
D/O. LATE TULASI KUMAR M.
@ TULASI KUMAR MELUPAKA
-2-
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AGED BOUT 3 YEARS
SINCE MINOR REPRESENTED BY
NATURAL GUARDIAN, MOTHER
SMT. SRIDEVI B.
BOTH RESPONDENT NOS.1 AND 2
ARE R/AT NO.3-84
MOOREANDRA PALLI
MUNELLAPALLE,
KALIKIRI,
ANNAMAYYA DITRICT-517 213.
3. SRI T. DAMODHARA
S/O. SUNDARAMMA
AGED ABOUT 21 YEARS
R/AT NO.2-1, CHENNAREDDYPALLE,
RAMASAMUDRAM MANDALAM
KAPPALE GRAMA PANCHAYAT
ANNAMAYYA DISTRICT-517 417.
4. MOORE RETAIL PRIVATE LTD.
FORMERLY KNOWN AS
MORE RETAIL LIMITED AND
PRIOR TO THAT AS
ADITYA BIRLA RETAIL LTD.
5TH AND 6TH FLOOR
SKYLINE ICON, 86/92
ANDHERI KURLA ROAD,
NEAR MITTAL INDUSTRIAL ESTATE
ANDHERI (EAST)
MUMBAI-400 059.
REPRESENTED BY ITS HR
AND ALSO AT
MORE RETAIL PVT LTD.
FORMERLY KNOWN AS
MORE RETAIL LIMITED
AND PRIOR TO THAT AS
ADITYA BIRLA RETAIL LTD.
NO.178/2, HULLAHALLI, C.K. PALYA,
SAKALAVARA POST
BANGALORE-560 083.
...RESPONDENTS
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CRP No. 222 of 2023
(BY SRI C.H. RAMACHANDRA REDDY, ADVOCATE FOR R1 & R2;
V/O. DT. 08.06.2023, NOTICE TO R3 IS DISPENSED WITH;
V/O. DT. 08.06.2023, NOTICE TO R4 IS HELD SUFFICIENT)
THIS CRP IS FILED UNDER SECTION 115 OF CPC
AGAINST THE ORDER DATED 14.03.2023 PASSED ON IA NO.4
IN P AND SC NO.26/22 ON THE FILE OF THE III ADDITIONAL
SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU, REJECTING THE IA FILED UNDER ORDER 7 RULE
11(a) AND (d) OF CPC FOR REJECTION OF PLAINT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioners and learned
counsel for the respondents.
2. In this revision petition, the revision petitioners
have assailed the order passed by the Trial Court dated
14.03.2023 passed on I.A.No.4 filed under Order 7, Rule 11(a)
and (d) read with Section 151 of C.P.C. in P and S.C.
No.26/2022 dismissing the application.
3. The factual matrix of the case of the petitioners
before the Trial Court in P and S.C.No.26/2022 is that the
petitioners had filed a petition under Section 372 Indian
Succession Act, 1925 ('the Act' for short) praying the Court to
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grant an order of succession certificate in their favour that they
are entitled for 2/3rd share in the death benefits i.e., GPF, PF
etc., of Late Tulasi Kumar M. which amounts to Rs.11,33,332/-
which is jointly and severally payable by the respondents Nos.1
and 5.
4. It is contended in the petition that the petitioners
are the wife and daughter of deceased Tulasi Kumar M., who is
gainfully employed with the respondent No.5-company and
came to know that the respondent Nos.1 to 3 have fraudulently
obtained the death benefits of Late Tulasi Kumar M. Hence,
they filed the petition.
5. The respondent Nos.1 to 3 i.e., the petitioners
herein have filed an application under Order 7, Rule 11 (a) and
(d) read with Section 151 of C.P.C. praying the Court to reject
the plaint, as it is without any cause of action and as such,
being barred by law. In support of the application, an
averment is also made that the petition is completely silent
about how cause of action arose on 25.01.2022 and on
28.03.2022 and it is contended that the deceased is a
permanent employee of Chittoor, Andhra Pradesh and the same
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does not comply with Section 371 of the Act and also hit by
Section 20 of the C.P.C. and prayed the Court to reject the
plaint.
6. This application is resisted by the respondents by
filing statement of objection contending that, it is an admitted
fact that the deceased was staying and working in Bengaluru
and the death certificate also clearly discloses that he died in
Bengaluru and when he was gainfully employed in Bengaluru,
the very contention that there is no jurisdiction and cause of
action and the same is barred by law cannot be accepted. It is
contended that, though the deceased was a resident of Andhra
Pradesh, but he was resident of Konadasapura, Virgonagar
Post, Bengaluru East Taluk and the same is also reported by
the police in UDR case and the death certificate also discloses
the place of death of deceased as Konadasapura, Virgonagar
Post, Bengaluru East Taluk and the deceased was employed in
Aditya Birla Branch office of respondent No.5 and the
respondent No.5 is also having its business in Bengaluru.
Hence, the very contention of the petitioners cannot be
accepted.
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7. The Trial Court, having considered the grounds
urged in the application and also statement of objection and
having extracted Sections 19 and 20 of C.P.C., the Trial Court
comes to the conclusion that the claim is in respect of the
movables of the deceased and the deceased was also gainfully
employed in Bengaluru and respondent No.5-compnay is also
carrying business in Bengaluru. Hence, issuance of succession
certificate is in respect of death benefits of late Tulasi Kumar M.
is not hit by Sections 19 and 20 of C.P.C. and therefore, the
very contention that no territorial jurisdiction to adjudicate the
same cannot be accepted and application filed has to be
rejected.
8. Being aggrieved by the said order, this revision
petition is filed. The counsel for the petitioners would
vehemently contend that, when the petition is filed under
Section 372 of the Act, the Trial Court ought to have taken note
of Section 371 of the Act and the same has not been discussed
in the order and instead, erroneously passed an order invoking
Sections 19 and 20 of C.P.C. The counsel also brought to notice
of this Court Section 371 of the Act with regard to the Court
having jurisdiction to grant succession certificate. The counsel
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also, in support of his argument, relied upon the document of
birth certificate of the deceased, who was born in Andhra
Pradesh, copy of Aadhaar Card and copy of death certificate of
the deceased and brought to notice of this Court that in the
death certificate also, the permanent address is mentioned as
Chittoor, Andhra Pradesh and these documents evidences the
fact that he is the resident of Andhra Pradesh.
9. The counsel, in support of his argument, relied
upon the judgment of the Apex Court in BHAGWAN DASS
AND ANOTHER VS. KAMAL ABROL AND OTHERS reported
in (2005) 11 SCC 66 and brought to notice of this Court Para
No.10 with regard to the meaning of the word "ordinarily
resident", wherein the Apex Court has observed that, before he
can be said to be ordinarily residing at a particular place has to
have an intention to stay at that place for a considerable length
of time and it would not include a visit of a short or casual
presence at that place. The counsel also brought to notice of
this Court Para No.11, wherein also the Apex Court observed
that the word "residence" is generally understood as referring
to a person in connection with the place where he lives, and
may be defined as one who resides in a place or one who
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dwells in a place for a considerable period of time as
distinguished from one who merely works in a certain locality or
comes casually for a visit and the place of work or the place of
casual visit are different from the place of "residence".
10. The counsel also brought to notice of this Court the
judgment of the Rajasthan High Court in the case of
SURENDRA BHATIA VS. POONAM BHATIA & ORS. reported
in 2005 SCC ONLINE RAJ 101 and brought to notice of this
Court Para No.21, wherein the Court has discussed with regard
to Section 371 of the Act and observed that Section 371 of the
Act would clearly manifest that the District Judge within whose
jurisdiction the deceased ordinarily resided would have
jurisdiction to entertain and try the petition under Section 372
of the Act. The counsel also brought to notice of this Court
Para No.25, wherein also observed that the plaintiff is entitled
under law to get the relief sought for.
11. The counsel also relied upon the judgment of the
Madhya Pradesh High Court in the case of SMT. CHANDRA
KALA DOBLE & OTHERS VS. SHYAM RAO DOBLE AND
OTHERS reported in (1998) SCC ONLINE MP 619 and
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brought to notice of this Court Page No.883, wherein the Court
has discussed with regard to Section 371 of the Act with regard
to Court having jurisdiction to hear and decide the matter.
12. The counsel also relied upon the judgment of the
Allahabad High Court in the case of KM. RAKHI AND
ANOTHER VS. 1ST ADDITIONAL DISTRICT JUDGE,
FIROZABAD AND OTHERS reported in (1999) SCC ONLINE
ALL 923 and brought to notice of this Court Para No.34,
wherein also discussed with regard to the place of entertaining
the petition and held that, if the deceased took the treatment in
a place where he died, the same cannot constitute territorial
jurisdiction.
13. Per contra, learned counsel for the respondents in
his argument would vehemently contend that there is no
dispute with regard to the fact that the deceased was a
permanent resident of Chittoor Andhra Pradesh but, he was
staying and working in Bengaluru and the very death certificate
clearly discloses that he died in Bengaluru only. The fact that
he was residing in Bengaluru is specifically mentioned in the
petition itself that he was staying in a room and the petitioners
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i.e., respondent herein were visiting the said place and cause of
action is also specifically pleaded in the petition itself, when the
respondents came to know about the fact that an attempt is
made by the petitioners herein to fraudulently obtain the
service benefits of the deceased. The counsel would submit
that, while filing the petition, having taken note of the fact that
deceased was working in Bengaluru and was an ordinarily
resident of Bengaluru and the incident of death has also taken
place in Bengaluru and the respondent No.5-Company is also
within the jurisdiction of this Court and petition is filed before
the Trial Court having jurisdiction. Hence, the very contention
of the revision petitioners cannot be accepted.
14. Having heard the learned counsel for the petitioners
and learned counsel for the respondents, the point that would
arise for consideration of this Court is:
(1) Whether the Trial Court committed an error
in dismissing the application filed under
Order 7, Rule 11 (a) and (d) read with
Section 151 of C.P.C. and whether it
requires exercise of the revisional
jurisdiction, in coming to the conclusion that
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the order passed by the Trial Court suffers
from infirmity?
15. Having heard the respective counsel, both the
learned counsel for the revision petitioners and the respondents
not dispute the fact that the deceased Tulasi Kumar M. was
working in Bengaluru and also no dispute with regard to the
fact that respondent No.5 is the employer of the deceased
Tulasi Kumar M. It is also not in dispute that TulAsi Kumar M.
died in Bengaluru and the place of death mentioned in the
death certificate is also Bengaluru. No doubt, the document
produced by the revision petitioners evidences the fact that the
deceased Tulasi Kumar was born in Andhra Pradesh and in the
Aaadhaar card also, it is shown as Andhra Pradesh but, the
death certificate discloses the residential address as well as
place of death as Bengaluru. The main contention of the
learned counsel for the revision petitioners is that, there is no
compliance of Section 371 of the Act and the Trial Court has
not discussed the same and it has no jurisdiction to grant the
succession certificate. Hence, ought not to have rejected the
application.
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16. Having considered the submission, it is appropriate
to extract Section 371 of the Act, which reads as hereunder:
"371. Court having jurisdiction to grant
certificate.- The District Judge within whose
jurisdiction the deceased ordinarily resided at the
time of his death, or, if at that time he had no
fixed place of residence, the District Judge, within
whose jurisdiction any part of the property of the
deceased may be found, may grant a certificate
under this Part."
17. Having read this proviso, it is very clear that the
jurisdiction is based on the ordinarily residence of place at the
time of death. The learned counsel for the petitioner relied
upon the judgment of the Apex Court in BHAGWAN DASS's
case, wherein the Apex Court, in Para No.10 of the judgment
relied upon the judgment in UNION OF INDIA VS. DUDH
NATH PRASAD reported in (2000) 2 SCC 20, wherein while
discussing with regard to the word "resides" and "ordinarily
resident" discussed that, it is clear that the person, before he
can be said to be ordinarily residing at a particular place has to
have an intention to stay at that place for a considerable length
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of time and it would not include a visit of a short or casual
presence at that place.
18. Having considered this principle, it is very clear
that, he should have an intention to reside there. But, here is a
case where the deceased was staying and working in Bengaluru
and was gainfully employed in Bengaluru and respondent No.5-
employer is having its establishment in Bengaluru and the
respondent No.1 also pleaded in the petition itself that her
marriage was solemnized in the year 2019 and prior to that, he
was employed in Bengaluru and was having residence in
Bengaluru and in the death certificate also, it is mentioned as
Bengaluru and admittedly, he also died in Bengaluru. Hence, it
is very clear that he was residing for a considerable length of
time in Bengaluru and the judgment of the Apex Court is also
very clear that one who resides in a place or one who dwells in
a place for a considerable period of time as distinguished from
one who merely works in a certain locality or comes casually for
a visit and the place of work or the place of casual visit are
different from the place of "residence". Hence, the very
principle laid down in the judgment is not applicable to the case
on hand.
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19. No doubt, the counsel also relied upon other
judgments, wherein Allahabad High Court held with regard to
the place where he died while taking the treatment cannot be
the place, whereas the same is not the case in the case on
hand. The other judgment of Rajasthan High Court and
Madhya Pradesh High Court also will not come to the aid of the
petitioners herein and the Court has to take note of the
material on record and there is no dispute with regard to the
fact that in the case on hand, the deceased was gainfully
employed in Benglauru and the establishment in which the
deceased was working is also having its office in Bengaluru.
20. It is also important to note that the very contention
that Section 371 of the Act has not been complied cannot be
accepted and the very Section 371 of the Act is clear that
jurisdiction can be invoked on the basis of place where the
deceased ordinarily resided at the time of his death. But, in the
case on hand, he was residing in Bengaluru at the time of his
death and Section 371 of the Act is clear that when a person
had no fixed place of residence, the District Judge, within
whose jurisdiction any part of the property of the deceased
may be found, may grant a certificate under this Part. Further,
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the claim in this petition is with regard to death benefits of the
deceased which is a movable property which is also claimed in
Bengaluru and the respondent No.5 has to disburse the said
amount. Hence, the said contention cannot be accepted.
21. The other contention of the learned counsel for the
revision petitioners is that the Trial Court erroneously invoked
Sections 19 and 20 of the C.P.C. and the same cannot be
invoked. The said contention cannot be accepted and Sections
19 and 20 of C.P.C. is with respect to movable property. In the
case on hand, the respondent No.5 was carrying on business in
Bengaluru and the deceased was gainfully employed in
Bengaluru and the very contention that Sections 19 and 20 of
C.P.C. invoked by the Trial Court is erroneous cannot be
accepted. Hence, I do not find any error in the order passed by
the Trial Court with regard to dismissing the application filed
under Order 7, Rule 11 (a) and (d) read with Section 151 of
C.P.C.
22. It is also important to note that while considering
the application filed under Order 7, Rule 11 (a) and (d) read
with Section 151 of C.P.C., the Court has to look into the
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averments made in the plaint and on perusal of the plaint
averments, it is very clear that respondents have specifically
pleaded in the petition itself with regard to the cause of action
since, the very contention is that no cause of action has arisen
before this Court and the said contention cannot be accepted
since, in Para No.16 of the petition, it is categorically stated
with regard to the fact that cause of action arose on
20.01.2022 when petitioners therein came to know that the
respondents have fraudulently got released the entire death
benefit of late Tulasi Kumar M. from the respondent No.5
depriving the rights and share of the petitioners over the same.
23. Hence, it is very clear that movable property which
is held by the respondent No.5 was disbursed in Bengaluru and
when the petitioners questioned the same, the respondent
No.5-Company has directed the petitioners to obtain order from
the Court on 28.03.2022. Hence, legal notice was issued to the
petitioners and also the respondent No.5. When such clear
pleading is made in the plaint with regard to the cause of action
and apart from that, details are also given in the plaint with
regard to the cause of action to claim the death benefits of the
husband of the respondent No.1 herein. It is also settled law
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that Court has to look into the averments of the plaint while
considering the application filed under Order 7, Rule 11 (a) and
(d) read with Section 151 of C.P.C. and not the defence of the
petitioners herein. On that ground also, I do not find any merit
in the petition.
24. The counsel for the respondents also brought to
notice of this Court that the Trial Court has imposed cost of
Rs.5,000/- while rejecting the application. On perusal of the
order impugned, it is seen that nothing is discussed with regard
to imposing cost and no reason is assigned for imposing cost as
to abuse of process etc., and mere filing of an application under
Order 7, Rule 11 (a) and (d) read with Section 151 of C.P.C.
before the Trial Court is not a ground to impose cost, unless
the Court power is abused. Hence, it requires interference with
regard to imposing of cost is concerned. Accordingly, I answer
the point framed by this Court as 'negative'.
25. In view of the discussions made above, I pass the
following:
ORDER
(i) The petition is dismissed. However, the cost
imposed by the Trial Court is set aside.
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(ii) The Trial Court is directed to dispose of the
petition within a time bound period of six
months.
(iii) Both the parties and their respective counsels
are directed to assist the Trial Court in
disposal of the case within the stipulated time
without seeking unnecessary adjournments.
Sd/-
JUDGE
ST
