Karnataka High Court
Sri Ramappa Appanna Yadahalli vs Smt Nagarathnamma on 28 February, 2024
-1-
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MFA No. 796 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
MISCELLANEOUS FIRST APPEAL NO.796 OF 2020 (CPC)
BETWEEN:
SRI. RAMAPPA APPANNA YADAHALLI
SON OF LATE APPANNA YADAHALLI,
AGED ABOUT 54 YEARS,
RESIDING AT NO.3,
VEERABHADRESHWARA NILAYA,
1ST FLOOR, 3RD MAIN ROAD,
SHIVANAGARA, WOC ROAD,
BENGALURU-560010
...APPELLANT
(BY SRI. V. SRINIVAS, ADVOCATE)
AND:
SMT. NAGARATHNAMMA
WIFE OF LATE VENKATAGIRIYAPPA
SINCE DEAD BY HER LRS,
1. SMT. V.VIJAYALAKSHMI,
DAUGHTER OF LATE NAGARATHNAMMA,
Digitally
signed by BS WIFE OF DEVARAJ,
RAVIKUMAR MAJOR IN AGE,
Location:
HIGH 2. SRI. V. RAJU
COURT OF SON OF LATE NAGARATHNAMMA,
KARNATAKA
MAJOR IN AGE,
3. SRI. V. GIRISH
SON OF LATE NAGARATHNAMMA,
MAJOR IN AGE,
4. MS. R. RASHMI
GRANDDAUGHTER OF
LATE NAGARATHNAMMA,
MAJOR IN AGE,
ALL ARE RESIDING AT
-2-
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MFA No. 796 of 2020
NO.457, 10TH CROSS,
6TH PHASE, 1ST STAGE,
WOC ROD, BASAVESHWARNAGAR,
MAHAGANAPATHINAGAR,
BENGALURU-560014.
...RESPONDENTS
(BY SRI. PRASANNA V.R., ADVOCATE FOR RESPONDENT NO.1 (NOC
NOT OBTAINED;
SRI. CHANDRASHEKARAN, ADVOCATE FOR RESPONDENT NOS.1 AND
4;
NOTICE SERVED ON RESPONDENT NOS.2 AND 3)
THIS MFA IS FILED UNDER ORDER 43 RULE 1 (k) OF CPC
AGAINST THE JUDGMENT AND AWARD DATED 23.10.2019 PASSED
ON I.A.NO.8 IN O.S.NO.518/2008 ON THE FILE OF THE XXXIX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-
40), REJECTING THE I.A.NO.8 FILED UNDER ORDER 22 RULE 9 READ
WITH SECTION 151 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff in O.S.No.518/2008 on the file of XXXIX
Additional City Civil and Sessions Judge, Bengaluru, has filed
this appeal challenging an order dated 23.10.2019, by which,
an application (I.A.No.8) filed under Order XXII Rule 9 read
with Section 151 of Civil Procedure Code, 1908 as well as the
application (I.A.No.9) filed under Section 5 of the Limitation
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Act, 1963 was rejected and the suit was disposed off as having
abated.
2. The suit in O.S.No.518/2008 was filed for specific
performance of an agreement of sale purportedly executed by
the defendant. The defendant contested the suit and filed a
written statement. When issues were yet to be framed, the
counsel for the defendant filed a memo on 08.07.2013,
informing the Court about the death of the defendant on
24.04.2013. But the case stood adjourned from time to time to
take steps to bring the legal representatives of deceased
defendant on record. The plaintiff filed I.A.No.9 under Section 5
of the Limitation Act, to condone the delay in filing I.A.No.8
filed for setting aside the order of abatement of the suit as
against the legal representatives of defendant on 16.09.2019.
3. Following this, an application - I.A.No.5 was filed
under Order XXII Rule 4 of Civil Procedure Code on
23.09.2014. These applications were contested by the legal
representatives of the deceased defendant. The Trial Court
after considering the application as well as the objections filed
thereto, rejected those applications, in terms of the order dated
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23.10.2019, on the ground that some of the legal
representatives of deceased defendant had already expired in
the year 1992 and 2016 and that the plaintiff had deliberately
suppressed the material facts and without ascertaining the
correct details of legal representatives of the deceased
defendant, had filed false applications. That the application for
bringing the legal representatives of deceased defendant was
filed on 23.09.2014. While, the applications for condonation of
delay and for setting aside the abatement were filed on
16.09.2019. That there was no sufficient cause shown for the
delay, as to why the plaintiff did not take any immediate steps
even after being informed about the death of the defendant on
08.07.2013. Being aggrieved by the said order, this appeal is
filed.
4. The learned counsel for the appellant/plaintiff
submitted that soon after the death of the defendant was
informed on 08.07.2013, an application was filed to bring the
legal representatives of deceased defendant on 23.09.2014.
The delay in filing the application to bring the legal
representatives of the deceased defendant had therefore to be
reckoned till 23.09.2014. He submits that since the cause of
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action survived against the legal representatives of deceased
defendant, the Trial Court ought to have been liberal in
construing the cause shown for the delay. He further submits
that the appellant had to gather the particulars of the legal
representatives of the deceased defendant and this might have
taken time and therefore, the application to condone the delay
and for setting aside abatement of the suit was filed belatedly.
He submits that having regard to the reliefs sought in the suit,
the Trial Court ought to have been more considerate in the
matter of condoning the delay in filing the application to bring
the legal representatives of the deceased defendant and to set
aside the abatement. In this regard, he relied upon the
judgment of a Coordinate bench of this Court in the case of
Dhareepa Vs. Shankar Others - 2018 SCC Online Kar
2896, where it was held that in matters of condoning the delay
in filing the application to bring the legal representatives of the
deceased parties on record, the Courts have to be considerate
having regard to the fact that getting details of legal
representatives of the deceased parties would consume time.
He therefore, contends that in the case on hand too, the
appellant was not aware of the legal representatives of the
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deceased defendant and thus, application could not have filed
within time.
5. The learned counsel for the legal representatives of
the deceased defendant, however submits that the appellant
has not been diligent in pursuing the suit before the Trial Court
and in taking steps to bring the legal representatives of the
deceased in time. He submits that though the death of the
defendant was intimated to the Court on 08.07.2013, he did
not take any steps till 23.09.2014. He also did not file any
application to condone the delay to set aside the abatement of
the suit till 16.09.2019. He therefore contends that the Trial
Court did not have any other option than to dispose off the
above suit as having abated.
6. I have considered the submissions made by the
learned counsel for the appellant as well as learned counsel for
the respondent.
7. The suit in O.S.No.518/2008 was filed for specific
performance of an agreement of sale allegedly executed by the
defendant. The defendant did contest the suit by filing the
written statement. During the pendency of the suit, the
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defendant died and the death of the defendant was intimated to
the Court on 08.07.2013. However, since there was no
obligation on the part of the counsel representing the
defendant to give out the details of the legal representatives of
the deceased defendant, it was possible that the plaintiff had
difficulty in securing the details of the legal representatives of
the deceased defendant.
8. In that view of the matter, though the application
for bringing the legal representatives of the deceased
defendant was belated, the cause shown for the delay is
probable and deserves to be accepted. The strict approach
adopted by the Trial Court in requiring the plaintiff to explain
each and every days delay in filing the applications was not
warranted, having regard to the fact that the plaintiff did not
have any details of the legal representatives of the deceased
and their addresses etc.,
9. In that view of the matter, the impugned order
passed by the Trial Court deserves to be interfered with and
delay in filing the application to bring the legal representatives
of deceased defendant deserves to be condoned by setting
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aside the abatement, as the cause of action survived against
the legal representatives of deceased defendant .
10. Consequently, this appeal is allowed. The impugned
order dated 23.10.2019 passed in O.S.No.518/2008 on
I.A.Nos.8 and 9 by the XXXIX Additional City Civil and Sessions
Judge, Bengaluru is set aside. The applications (I.A.No.9) filed
by the plaintiff for condonation of delay in filing the application
(I.A.No.8) filed for setting aside the abatement of suit as
against the legal representatives of deceased defendant is
allowed and the delay are condoned.
11. Similarly application (I.A.No.5) filed by the plaintiff
to bring the legal representatives of deceased defendant on
record is allowed and the legal representatives of the deceased
defendant are ordered to be brought on record and if any of the
legal representatives of the defendant have also expired, the
concerned shall intimate the Court about the death of such
person.
12. It is open for the plaintiff to ascertain the details of
the legal representatives of the deceased defendant, who have
also expired and take appropriate steps. Having regard to the
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fact that the suit is filed in the year 2008, the Trial Court is
requested to expedite the disposal of the suit which at any rate
shall not exceed 01 year from the date of framing of issues in
the suit.
13. The parties are directed to appear before the Trial
Court on 02.04.2024.
Sd/-
JUDGE
HJ
