Karnataka High Court

Smt Ramakka vs Ramalingappa on 11 June, 2025

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                                                           NC: 2025:KHC:19919
                                                          W.P. No.33266/2019


                    HC-KAR



                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                              DATED THIS THE 11TH DAY OF JUNE, 2025
                                                BEFORE
                          THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
                             WRIT PETITION NO.33266 OF 2019 (GM-CPC)


                   BETWEEN:

                   1.   SMT. RAMAKKA
                        W/O VENKATAPPA
                        AGED ABOUT 57 YEARS.

                   2.   SMT. MUNIVENKATAMMA
                        W/O HANUMANTHAPPA
                        AGED ABOUT 67 YEARS.

Digitally signed   3.   SMT. THIPPAKKA
by RUPA V               W/O MUNISWAMAPPA
Location: High          AGED ABOUT 69 YEARS.
Court of
karnataka               ALL ARE R/AT GUDIALAMBAGIRI
                        VILLAGE & POST, KASABA HOBLI
                        CHINTAMANI TALUK-562101.

                                                                ...PETITIONERS
                   (BY SRI. R. KALYAN, ADV.,)


                   AND:

                   1.   RAMALINGAPPA
                        S/O PEMANNA
                        AGED ABOUT 67 YEARS
                        R/AT. CHIKKAMUNIMANGALA VILLAGE
                        KOTAGAL MANDAL
                        AMBAJIDURGA HOBLI
                        CHINTAMANI TALUK-562101.

                   2.   SMT. ANJINAMMA
                        W/O LATE BUDDAPPA
                        AGED ABOUT 97 YEARS.
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                                         NC: 2025:KHC:19919
                                      W.P. No.33266/2019


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3.   B. MUNIYAPPA
     S/O LATE CHIKKABUDDAPPA
     AGED ABOUT 82 YEARS.

4.   D.M. KRISHNAPPA
     S/O SMT. GOWRAMMA
     AND DODDAMUNISHAMAPPA
     AGED ABOUT 42 YEARS.

5.   B.M. RAMESH
     S/O SMT. GOWRAMMA
     AND DODDAMUNISHAMAPPA
     AGED ABOUT 39 YEARS.

6.   D.M. MURALI
     S/O SMT. GOWRAMMA
     AND DODDAMUNISHAMAPPA
     AGED ABOUT 33 YEARS.

7.   D. KAVITHA
     D/O SMT. GOWRAMMA
     AND DODDAMUNISHAMAPPA
     AGED ABOUT 27 YEARS.

     R2 TO R7 ARE R/AT
     DODDADASARAHALLI VILLAGE
     KASABA HOBLI, SIDDALAGHATTA TALUK
     CHIKKABALLAPURA DISTRICT-562101.
                                             ...RESPONDENTS
(BY SRI. LOKESH L.N. ADV., R1
    R2 TO R7 ARE SERVED & UNREPRESENTED)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI OR ANY OTHER WRIT OR DIRECTION AND TO QUASH
THE IMPUGNED ORDER DATED 27.03.2019 ON I.A.NO.7 FILED
UNDER SECTION 5 OF THE LIMITATION ACT AND IA NO.1 & 6 UNDER
ORDER 22 RULE 4 & UNDER ORDER 22 RULE 9 OF CPC IN RA
NO.1/2012 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC AT
CHINTAMANI AS PER ANNEXURE-A TO THE WRIT PETITION AND
CONSEQUENTLY TO ALLOW THE IA NO.1 & 6 FILED UNDER ORDER
22 RULE 4 AND UNDER ORDER 22 RULE 9 OF CPC & ETC.
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                                                   NC: 2025:KHC:19919
                                                 W.P. No.33266/2019


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      THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM:        HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

                             ORAL ORDER

This petition is filed seeking the following prayer:

(a) Issue a writ of certiorari or any other writ or direction and to quash the impugned order dated 27.3.2019 on I.A.No.7 filed under section 5 of the Limitation Act and IA No.1 & 6 under order 22 rule 4 & under order 22 rule 9 of CPC in RA No.1/2012 passed by the Senior Civil Judge and JMFC at Chintamani as per Annexure-A to the Writ Petition and consequently to allow the IA No.1 & 6 filed under order 22 rule 4 and under order 22 rule 9 of CPC.

(b) To pass such other order/s as deems fit by this Hon'ble court in the facts and circumstances of the case.

2. Sri.Kalyan R., learned counsel for the petitioners

submits that the petitioners-plaintiffs have filed

O.S.No.81/2008 for partition and separate possession of the

suit schedule property. During the pendency of the said suit,

defendant No.1-Smt.Gowramma died on 06.01.2010. However,

the legal representatives of deceased defendant No.1 could not

be brought on record during the pendency of the said suit. The

said suit came to be dismissed on 02.12.2011. Being

aggrieved, the petitioners-plaintiffs have filed R.A.No.1/2012

before the Court of Senior Civil Judge and JMFC, Chintamani

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(for short, 'Appellate Court') and in the said appeal, I.A.No.1

came to be filed on 17.04.2012 under Order XXII Rule 4 read

with Section 151 of CPC to bring the legal representatives of

defendant No.1 on record, later I.A.Nos.3, 4 & 5 came to be

filed on 26.11.2014 under Section 5 of the Limitation Act, Order

XXII Rule 9 and Order XXII Rule 4 of CPC respectively, and

those applications were pending before the trial Court and

when the matter was posted for final hearing, the applications

in I.A.No.6 came to be filed under Order XXII Rule 9 of CPC and

I.A.No.7 under Section 5 of Limitation Act seeking similar

prayer. The appellate Court, solely on the ground of limitation,

dismissed I.A.No.7 and consequently held that I.A.No.6 does

not survive for consideration in view of dismissal of I.A.No.7.

3. It is submitted that though there is some lapse on

the part of the petitioners-plaintiffs in filing the applications

within time, the appellate Court without considering the earlier

applications filed by the petitioners and keeping those

applications pending, proceeded to reject I.A.No.7 on hyper

technical ground that no sufficient cause is shown in the

affidavit. It is further submitted that the petitioners are the

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sisters of deceased Gowramma and if the appeal is allowed by

arraying the legal representatives of defendant No.1 on record,

no prejudice would cause to the legal representatives of

defendant No.1 and they also would get their share in the suit

schedule property. Hence, he seeks to set aside the impugned

order by allowing the pending applications by permitting the

legal representatives of deceased defendant No.1 to be brought

on record in the pending appeal.

4. Per contra, Sri.Lokesh L.N., learned counsel for the

respondent No.1 supports the impugned order of the trial Court

and submits that there is negligence on the part of the

petitioners-plaintiffs, firstly they could not bring the legal

representatives of deceased defendant No.1 in the original suit,

secondly, the application is filed belatedly and there is a delay

of 1751 days in filing the application to bring the legal

representatives of deceased defendant No.1, which has been

rightly considered by the appellate Court and by assigning

detailed reasons, the appellate Court rejected the application,

hence, the same does not call for interference.

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5. Respondent No.2 to 7 are served and they

remained unrepresented.

6. I have heard the learned counsel for the petitioners,

learned counsel for the respondent No.1 and perused the

material available on record.

7. The pleading and material available on record

indicates that O.S.No.81/2008 filed by the petitioners-plaintiffs

for partition and separate possession against respondent No.1

herein and deceased Gowramma came to be dismissed on

02.12.2011. It is not in dispute that during the pendency of the

aforesaid suit, defendant No.1 Smt.Gowramma died on

06.01.2010, however, the legal representatives of said

defendant could not be brought on record by the petitioners

before the trial Court. Being aggrieved by the judgment and

decree in O.S.No.81/2008, the petitioners have filed

R.A.No.1/2012, which is pending before the Court of Senior

Civil Judge and JMFC, Chintamani. In the said appeal, I.A.No.1

was filed by the petitioners on 17.04.2012 under Order XXII

Rule 4 read with Section 151 of CPC, but no application for

setting aside abatement and condonation of delay was filed.

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The records further indicate that the said application was kept

pending by the appellate Court. Later I.A.Nos.3, 4 & 5 were

filed by the petitioners-plaintiffs on 26.11.2014 under Section 5

of Limitation Act, under Order XXII Rule 9 and under Order

XXII Rule 4 of CPC respectively, seeking prayer to bring the

legal representatives of deceased defendant No.1 on record by

setting aside the abatement and by condoning the delay. Even

the said applications are kept pending by the appellate Court.

If I.A.No.1 is considered, the delay in filing the application

would be approximately 2 years and 3 months and even though

I.A.Nos.3, 4 & 5 are pending, the petitioners-plaintiffs again

filed I.A.No.6 under Order XXII Rule 9 of CPC on 15.12.2017

and I.A.No.7 under Section 5 of Limitation Act for condonation

of delay on 15.12.2017. The appellate Court, on considering

the same, rejected both the applications. There is no dispute

that there is a delay in filing the application to bring the legal

representatives of deceased defendant No.1 on record.

However, the delay is approximately 2 years and 3 months and

not 1751 days as observed by the trial Court.

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8. Considering the peculiar facts and circumstances of

the case and also keeping in mind that no prejudice would be

caused to the legal representatives of deceased defendant No.1

as the suit filed against deceased defendant No.1 and other

defendants came to be dismissed, the interest of justice would

be met if the legal representatives of deceased defendant No.1

are permitted to be brought on record in the pending appeal.

9. It is trite law that the Courts have to adopt justice

oriented approach in considering the applications filed under

Order XXII Rule 4 of CPC and it cannot reject the applications

on hyper-technical grounds, though the explanation for

condonation of delay is not given for every single day's delay,

however, if sufficient cause is shown for the delay, the same

has to be condoned and the word 'sufficient cause' is required

to be interpreted liberally while considering such applications.

10. Learned counsel for the respondent No.1 is right in

his submission that there is a lapse on the part of petitioners in

filing the application, and if the applications are allowed on

terms, the interest of justice would be met.

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11. For the aforementioned reasons and considering the

said submission made by learned counsel for the respondent

No.1, I am of the considered view that petition deserves to be

allowed subject to certain terms. Hence, I proceed to pass the

following:

ORDER

i. The writ petition is allowed.

ii. The impugned order dated 27.03.2019 passed on

I.A.No.7 filed under Section 5 of the Limitation Act and

I.A.No.1 & 6 under Order XXII Rule 4 and under Order

XXII Rule 9 of CPC in R.A.No.1/2012 by the Senior Civil

Judge and JMFC, Chintamani, is hereby set aside.

iii. The delay in filing the application under Order XXII

Rule 4 of CPC is condoned, abatement is set aside. LRs of

deceased defendant No.1-Smt.Gowramma are permitted

to be brought on record.

iv. It is made clear that legal representatives of

deceased defendant No.1 can raise all just defenses

available under law.

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v. The aforesaid order is passed subject to petitioners

paying cost of Rs.10,000/-, out of which Rs.5,000/- shall

be paid to legal representatives of deceased defendant

No.1 and balance Rs.5,000/- shall be paid to respondent

No.1 herein.