Karnataka High Court

Syed Basheer Ahmed Malik vs Sri. Nazeer Ahmed on 3 March, 2025

Author: M.G.S. Kamal

Bench: M.G.S. Kamal

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                                                      WP No. 63926 of 2016




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 3RD DAY OF MARCH, 2025

                                            BEFORE
                             THE HON'BLE MR JUSTICE M.G.S. KAMAL
                          WRIT PETITION NO. 63926 OF 2016 (GM-CPC)
                   BETWEEN:

                         SYED BASHEER AHMED MALIK
                         S/O LATE ALHAJ S.A. MALIK,
                         AGED ABOUT 68 YEARS,
                         R/AT NO.7
                         OSHAUGHNESSY ROAD,
                         LANGFORD GARDEN,
                         BANGALORE-560 025
                                                              ...PETITIONER
                   (BY SRI. H.R. ANANTHA KRISHNA MURTHY, ADVOCATE)

                   AND:

                   1.      SRI. NAZEER AHMED
                           SINCE DECEASED BY LRS
Digitally signed
by ROOPA R U
                   1(A). SMT. KHAIRUNNISA
Location: HIGH
COURT OF                 W/O LATE NAZEER AHMED
KARNATAKA
                         AGED ABOUT 50 YEARS

                   1(B). SRI. SADIQ
                         S/O LATE NAZEER AHMED
                         AGED ABOUT 25 YEARS

                   1(C). SMT. TABASSUM
                         D/O LATE NAZEER AHMED
                         AGED ABOUT 23 YEARS.
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                                        WP No. 63926 of 2016




1(D). SMT. TARANUM
      D/O LATE NAZEER AHMED
      AGED ABOUT 23 YEARS.

1(E).   SRI. UMME SALMA
        D/O LATE NAZEER AHMED
        AGED ABOUT 21 YEARS.

1(F).   MISS MUBASHEERA SULTANA @ BABY
        D/O LATE NAZEER AHMED
        AGED ABOUT 20 YEARS

        ALL THE LR'S 1(A) TO 1(F) ARE
        R/AT 33/3, IST FLOOR,
        IST MAIN ROAD,
        PUKRAJ LAYOUT,
        MICO GATE INDUSTRIAL ROAD,
        BENGALURU-560 030.

2.      SRI ANSAR
        DEAD BY LRS

2(A). SMT. SYEDA NAZIMA
      W/O LATE SYED ANSAR SAB ZAWARI
      AGED ABOUT 48 YEARS.

2(B). SRI. SYED MOHSIN
      S/O LATE SYED ANSAR SAB ZAWARI
      AGED ABOUT 42 YEARS.

2(C). SYEDA SUMAYA
      D/O. LATE SYED ANSAR SAB ZAWARI
      AGED ABOUT 38 YEARS.

2(D). SYEDA SADIYA
      D/O LATE SYED ANSAR SAB ZAWARI
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                                   WP No. 63926 of 2016




        AGED ABOUT 36 YEARS.

2(E).   SYEDA SAJIDA
        D/O LATE SYED ANSAR SAB ZAWARI
        AGED ABOUT 33 YEARS

2(F).   SYEDA TAMANNA
        D/O LATE SYED ANSAR SAB ZAWARI
        AGED ABOUT 30 YEARS.

2(G). SYEDA ZUBAIR
      S/O LATE SYED ANSAR SAB ZAWARI
      AGED ABOUT 25 YEARS.

        ALL ARE R/AT NO.9/1
        CHURCH ROAD, 2ND CROSS,
        BASAVANAGUDI,
        BANGALORE-560 004.

3.      SRI. AKTHAR
        S/O LATE ABDUL RAWOOF
        PORTION OF PROPERTY
        NO.57, 6TH CROSS
        H. SIDDAIAH ROAD
        BENGALURU-560 027

4.      SRI. AFSAR
        S/O LATE ABDUL RAWOOF
        PORTION OF PROPERTY
        NO.57, 6TH CROSS,
        H. SIDDAIAH ROAD,
        BENGALURU-560 027.

5.      SRI. ARUN KUMAR
        S/O LATE SHIVARUDRAIAH
        PORTION OF PROPERTY
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                                       WP No. 63926 of 2016




      NO.57, 6TH CROSS,
      H. SIDDAIAH ROAD,
      BENGALURU-560 027.

6.    SRI. MALLESH
      S/O LATE SHIVARUDRAIAH
      PORTION OF PROPERTY
      NO.57, 6TH CROSS,
      H. SIDDAIAH ROAD,
      BENGALURU-560 027.

7.    SMT. LALITHA,
      W/O. B. L. KESHAVAMURTHY,
      AGED ABOUT 68 YEARS,
      R/AT: NO.201, GR PEARL APARTMENTS,
      CHUNCHAGATTA MAIN ROAD,
      J.P.NAGAR 7TH PHASE,
      BENGALURU - 560 078.
                                            ...RESPONDENTS
(BY SRI. A.M. SURESH REDDY, ADVOCATE FOR R3 & R4;
    SRI. JAYANTH VENKAT RAM, ADVOCATE FOR R7;
    V/O/D 12.02.2024, NOTICE TO R1(A) TO R1(G),
    R5 & R6 NOTICE THROUGH PAPER PUBLICATION
    IS ACCEPTED;
    V/O/D 08.03.2021 NOTICE TO R2(A) TO R2(G) IS H/S)

     THIS   WP   IS   FILED   UNDER   ARTICLE   227   OF   THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DATED 14.11.2016 IN O.S.2253/2013 PASSED ON I.A.19
PASSED BY THE HON'BEL CITY CIVIL JUDGE AT BENGALURU AT
ANNEXURE-F AND ETC.
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                                        WP No. 63926 of 2016




    THIS PETITION, COMING ON FOR PRELIMINARY HEARING

IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS

UNDER:

CORAM:   HON'BLE MR JUSTICE M.G.S. KAMAL


                      ORAL ORDER

This petition is filed by the plaintiffs in

O.S No.2253/2013 which filed against the respondents

herein for relief of judgment and decree directing the

defendants/respondents to quit, deliver and vacate

possession of the suit schedule property and for

payment of arrears of rent and mesne profits, pending

consideration on the file of City Civil Court CCH-3,

Bengaluru. It appears that defendant No.5 filed a

memo dated 25.11.2014 which reads as under:

MEMO

The Defendant No.5 submits as follows:-

It is informed by the brother of the 5th Defendant that defendant No.5 was expired and possession of Schedule premises has been handed over to their landlord Smt.Lalitha.

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The copy of letter addused to counsel of the Defendant No.5 and death certificate are herewith produced for kind perusal of this Hon'ble Court.

Wherefore, it is most humbly prayed this Hon'ble Court may kindly be pleased to take this memo on record, in the ends of justice and equity.

2. Since, in the aforesaid memo the brother of

defendant No.5 has averred that, he has handed over

the portion of the suit property which was in

possession defendant No.5, to one Smt.Lalitha, whom

he claims to be the landlord, the petitioner/plaintiff

filed an application in I.A No.19 under Order 22 Rule 4

read with 151 of Code of Civil Procedure seeking to

bring on record, the said Smt.Lalitha as the legal

representative of deceased defendant No.5.

3. Objection with regard to the said application

field by the said proposed legal representative of

deceased defendant No.5, contending inter-alia that

proposed legal representative is not the blood relative

to deceased defendant No.5. It is also contended that

defendant No.5 has independent right, title and

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interest over the property and suit for ejectment as

against proposed defendant would not be

maintainable. That the plaintiff was required to file a

comprehensive suit for declaration of title and

recovery of possession. Hence, sought for dismissal of

the said application.

4. The Trial Court vide order dated 14.11.2016

dismissed the said application. Being aggrieved by the

same, the petitioner/plaintiff is before this Court.

5. Sri Anantha Krishna Murthy learned counsel

appearing for the petitioner taking this Court through

the documents and the petition averments submits

that the Trial Court grossly erred in rejecting the

application by prejudging the case of the parties. It is

his submission that, at the time of consideration of the

application under Order 22 Rule 4 of CPC, the Trial

Court was not required to go with the merits of the

case. All that the Trial Court was required to look into

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is whether the proposed legal representatives would

qualify to be brought on record as legal

representative, which is if there was any subsisting

cause of action for continuation of the suit. He further

submits that it is only after the said proposed legal

representatives coming on record, the Court can

adjudicate the rights between the parties and come to

a conclusion on the merits of the case. He further

refers to sub-Section (11) and Section 2 of CPC to

contend that the terms "legal representative" also

includes an "intermeddler" with the property of the

deceased.

6. He relies upon the judgement of the Apex

Court in the case of Custodian Of Branches Of

Banco National Ultramarino Vs. Nalini Bai Naique

reported in AIR 1989 SC 1589 and referring to

paragraph No.4 of the said judgment submits that the

term legal representative includes any person, who

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intermeddle with the estate of the deceased. That

being so since in the memo dated 25.11.2014 brother

of deceased defendant No.5 stated to have handed

over the portion of the property to said Smt.Lalitha,

he submits that said Smt.Lalitha would fall within the

meaning of term "intermeddler" though not "legal

representative". Hence, seeks for setting aside the

order passed by the Trial Court.

7. In response, Sri. Jayanth VenKat Ram,

learned counsel appearing for 7th respondent namely

Smt.Lalitha vehemently submits that, the suit is one

for decree of ejectment filed on the premise of the

original defendant No.1 being the tenant and

remaining defendants being sub-tenants. He submits

that the very averments made in the memo would

indicate that the brother of deceased defendant No.5

has treated and considered the said Smt.Lalitha, the

proposed legal representative to be the landlord. The

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impleadment of such a person as legal representative

of deceased sub-tenant would change the nature and

scope of the suit, which aspect has been considered

by the Trial Court and accordingly, has come to right

conclusion of rejecting the application. No errors can

be found warranting interference at the hands of this

Court. He also refers to copy of the plaint in OS

No.8701/2011 and submits that the very same

plaintiff, the petitioner herein has filed the

comprehensive suit in respect of the very same

property, in which the proposed legal representative

Smt.Lalitha has been arrayed as defendant No.4.

8. He submits that the said suit is one for

declaration and possession. In the light of the parallel

proceedings, being pending consideration between the

same parties, it is his submission that impleading the

said Smt.Lalitha as legal representative of deceased

defendant No.5 would run, contrary to the very case

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of the plaintiff, leading to anomaly. Hence, seeks for

rejection of the petition.

9. Learned counsel appearing for respondent

Nos.3 and 4 supplementaring submission made by

respondent No.7 refers the paragraph No.3 of the

plaint to contend that even according to the petitioner

defendant No.1 was the tenant in respect of a portion

of the measuring 25 feet X 60 feets and that the

plaintiffs claim to have inherited/acquired the said

property through his step mother and that he also

claimed to have purchased additional extent of 50 X

60 feet from the original owner. Thus, he submits that

in the light of the uncertainty of the extent of the

property being claimed by the petitioner in the suit as

a landlord and the extent of the property being

claimed by him as a owner in another suit in OS

No.8701/2011, impleading the 7th respondent as such

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the legal representative of purported sub-tenant is not

justified. Hence, seeks for dismissal of the petition.

10. Heard and perused the records.

11. From the perusal of the records and

submission made by the learned counsel for the

parties what emanates is that the petitioner claiming

to be the absolute owner of the property has instituted

the above the suit against the original defendants for

relief of deliver of possession, the extent of the land

shown therein as 75 X 60 feet.

12. On specific query by this Court, the learned

counsel appearing for the petitioner submits that, the

property described in the schedule to the plaint is in

possession of the defendants, who are the tenants and

sub-tenants respectively and his suit in OS

No.8701/2011 is in respect of another extent of land

and the properties the subject matter of these suits

are different and distinct.

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13. It is settled position of law, while

considering an application under Order 22 all that the

Court is required to keep in mind, if there is any cause

of action subsisting after demise of the original

defendant or if, there is any alienation of interest

during the subsisting of the suit. Such a consideration,

in any case would not amount to determination of any

rights of the parties, which is always kept open at the

time of determination of main issue in controversy.

14. Perusal of the impugned order, in the light

of aforesaid settled principles of law would indicate

that the Trial Court has indeed adjudicate the claim of

the parties as emanating from the unnumbered

second paragraph at running pages No.53 and 54 of

the writ petition, which reads as under:

"On thorough scrutiny of pleadings and connected records, it is ascertained that plaintiff has not produced any documents to show that 5th defendant was a tenant/sub-tenant under him in respect of suit property and 5th defendant has paid rent to the plaintiff at any point of time. It is relevant to note that plaintiff has not produced copy

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of the Rent/Lease Agreement or copy of the rent received receipt or any other document, which enables the court to believe that there was a landlord and tenant relationship between plaintiff and 5th defendant at any point of time. In the absence of any piece of document, supporting the contention of plaintiff, it is very difficult to accept the contention of plaintiff that once 5th defendant was a tenant/sub-tenant under him in respect of suit property and he had collected rents from him. In the absence of proved relationship between plaintiff and 5th defendant, as landlord and tenant/sub-tenant, it is not fair on the part of the court to hold that Smt. Lalitha w/o. Sri. B.L.Keshavamurthy (from whom, plaintiff has alleged to have been purchased the suit property), as a legal representative of the deceased 5th defendant. More so, there is a title dispute between the plaintiff and the husband of Smt.Lalitha in respect of suit property. In the above circumstances, plaintiff is not entitle for the relief so sought for. Accordingly, point No.1 is answered in the negative".

15. Whether there is relationship between the

landlord or tenant or not? Whether defendant No.5

was the sub-tenant of defendant No.1 in the present

suit as claimed by the petitioner or he was the tenant

under the said Smt.Lalitha or not? is a matter that is

required to be adjudicated during the trial.

16. As rightly pointed out by the learned counsel

for the petitioner from the contents of the memo

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dated 25.11.2014 filed upon the purported instruction

of the brother of deceased defendant No.5, it is clear

that the brother of deceased defendant No.5 has

handed over the portion of the property in his

possession to said Smt.Lalitha, as she was the

landlord of defendant No.5. If, this aspect was not

brought on record the natural course would have been

to bring on record, the legal representative of

deceased defendant No.5. The said memo is preceded

by the letter dated 19.11.2014 purportedly, addressed

by the brother of deceased defendant No.5 to the

counsel of defendant No.5. Perusal of the said letter

would indicate that the brother of the deceased

defendant No.5 was only legal representative and that

after the death of defendant No.5, he having found

said Smt.Lalitha to be the owner of the property he

has handed over the vacant possession to said

Smt.Lalitha. Which would indicate said Smt.Lalitha to

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have been considered as the landlord by the deceased

defendant No.5, falling within the meaning of the term

"intermeddler" of deceased defendant No.5. Since, the

brother of the defendant claims to be the only legal

representative of deceased defendant No.5 and no

other details have been brought on record and there

being no denial of proposed defendant Smt.Lalitha

having taken the possession from the brother of the

deceased defendant No.5 as contended in the memo,

this Court is of the considered view that said

Smt.Lalitha would fall within the meaning of

"intermeddler" as defined under sub-Section (11) of

Section 2 of the Code of Civil Procedure.

17. When the aforesaid facts have been brought

on record, as rightly pointed out by learned counsel

for the petitioner, even if the petitioner succeeds in

the suit, since said Smt.Lalitha having been put in

possession in place of defendant No.5, unless the said

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Smt.Lalitha was brought on record, the decree may

not be effectively implement. It is only these facts

which required to be considered, at the time of

adjudicate in the application under Order 22 of CPC

and nothing else.

18. In the considered view of this Court, the

finding given by the Trial Court with regard to the

merits of the case of the parties at this juncture is

unwarranted, which as already noted above, requires

to be adjudicated during the trial.

19. For the aforesaid reasons, the petition

succeeds. The impugned order is set aside. The

application filed by the petitioner is allowed and

permitting the petitioner is to bring on record, the said

Smt.Lalitha as party to the suit.

20. It is made clear that the order passed herein

above shall not be construed as determination of

rights and contention of the parties. No opinion is

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expressed in any manner with regard to rights of the

parties in this matter. The same shall be adjudicated

in the manner known to law in the suit pending before

the Trial Court.

21. It is further made clear that, if there are any

other legal representatives / blood relatives of the

deceased defendant No.5 it is open for any other

parties to bring to the notice of the Court for

appropriate orders.

SD/-

(M.G.S. KAMAL) JUDGE

KBM

CT:SNN