T. Saritha And 3 Others vs Adi Reddy Mohan Reddy And 2 Others
2022 Latest Caselaw 156 Tel

     HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY

       CIVIL MISCELLANEOUS APPEAL No.312 of 2021

JUDGMENT :

1. This Civil Miscellaneous Appeal is filed aggrieved by the order

dated 12.03.2020 in I.A.No.103 of 2020 in I.A.No.161 of 2019 in

O.S.No.353 of 2008 on the file of learned IV Additional District and

Sessions Judge-cum-I Additional Family Judge, Ranga Reddy

District.

For the sake of convenience, the parties are referred to as

plaintiff, defendants and proposed parties as arrayed in the original

suit and in I.A.No.161 of 2019.

2. The plaintiff has filed the original suit No.353 of 2008 for

specific performance of agreement of sale against defendant Nos.1

and 2. During pendency of the suit, defendant No.1 died and as per

the orders in I.A.No.141 of 2015, dated 26.10.2017, defendant No.2

i.e. the wife of defendant No.1 was brought on record as his legal

representative. Defendant No.1 himself has filed the written

statement in the original suit on 04.09.2008, issues were settled and

the trial was in progress. At this stage, as the defendant No.1 died, his

wife was brought on record as defendant No.2 as per the orders in

I.A.No.141 of 2015, dated 26.10.2017. Thereafter, I.A.No.161 of

2019 was filed by the proposed parties under Order 1 Rule 10 r/w.

Order 22 Rule 4 CPC to implead them as defendant Nos.3 to 6 in the

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original suit. That application was dismissed for default on

23.01.2020. Consequently, I.A.No.103 of 2020 is filed under Order 9

Rule 9 r/w. Section 151 CPC to restore I.A.No.161 of 2019 by setting

aside the dismissal order dated 23.01.2020 in the interest of justice.

This application filed under Order 9 Rule 9 CPC was dismissed

through the order impugned on 12.03.2020 by the trial Court with an

observation that initially, I.A.No.1320 of 2017 was filed by the

petitioners under Order 1 Rule 10 r/w. Order 22 Rule 4 CPC to permit

them to come on record being the legal heirs of the deceased

defendant No.1 and that application was dismissed by the trial Court

after due contest, on 17.08.2018 holding that there is a dispute with

regard to relationship between the proposed parties and the deceased

defendant No.1 and that they cannot be treated as the legal

representatives of deceased/defendant No.1 for the purpose of the

original suit as the defendant No.2 is added as his legal representative.

3. After dismissal of I.A.No.1320 of 2017, the petitioners have

again filed I.A.No.161 of 2019 under Order 22 Rule 4 CPC to permit

them to come on record as defendant Nos.3 to 6 being the legal heirs

of deceased defendant No.1 and that petition was dismissed for

default on 23.01.2020 since the petitioners failed to prosecute the

litigation properly and the costs imposed by the Court were also not

paid till 3.40 p.m. on that day. The Court below has made an

observation that even prior to that date, docket reveals that petitioners

were not evincing any interest to prosecute the case. Further, the

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order dated 17.08.2018 passed in I.A.No.1320 of 2017 has attained

finality since there is no material on record to suggest that the

petitioners have preferred any revision or appeal before the superior

Court challenging the dismissal orders.

4. The above being the factual position, the petitioners, without

disclosing the dismissal of I.A.No.1320 of 2017 on 17.08.2018, have

again filed I.A.No.161 of 2019 under Order 22 Rule 4 CPC to implead

them in the original suit as legal representatives of deceased defendant

No.1. At the cost of repetition, it is to mention that after the death of

defendant No.1, his wife Smt.T.Vijaya Laxmi was brought on record

as defendant No.2 as per the orders in I.A.No.141 of 2015, dated

26.10.2017 and amended plaint was also filed. The orders in

I.A.No.1320 of 2017, dated 17.08.2018 are available in the material

papers filed by the revision petitioners/proposed parties, which show

that the petitioners approached the Court with a request to implead

them as legal representatives of deceased defendant No.1 after the

defendant No.2 was brought on record as legal representative of

defendant No.1, but they failed to file any documentary proof to show

that they are the legal heirs of deceased defendant No.1. In view of

the fact that there is a dispute as to the relationship of proposed parties

with the deceased defendant No.1 and as defendant No.2 is already

representing the estate of defendant No.1 in a suit for specific

performance, the trial Court held that the proposed parties are not

necessary for effective adjudication of the matter in the original suit

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No.353 of 2008. By suppressing the said fact, I.A.No.161 of 2019

was filed again under Order 22 Rule 4 CPC, which was dismissed for

default on 23.01.2020. For restoration of the said application, this

I.A.No.103 of 2020 is filed under Order 9 Rule 9 r/w. Section 151

CPC.

5. Learned counsel for appellants relied on the principles laid by

the Hon'ble Supreme Court in Pankajbhai Rameshbhai Zalavadia

v. Jethabhai Kalabhai Zalavadiya (deceased) through Lrs. and

others1 and in Varadarajan v. Kanakavalli & others2.

6. I have carefully perused the principles laid in the above

decisions. It is true the dismissal of application under Order 22 Rule 4

CPC is not a bar for filing application under Order 1 Rule 10 CPC and

the petitioners/third parties are always at liberty to file such

applications but the facts of the present case are quite distinct. The

petitioners have been claiming their status as legal representatives of

deceased defendant No.1, which is in dispute. The widow of

defendant No.1 i.e. defendant No.2, is brought on record. The

plaintiff and the defendant No.2 have been disputing the relationship

of proposed parties with the deceased defendant No.1. The proposed

parties also failed to adduce any oral or documentary evidence either

in I.A.No.1320 of 2017 or in I.A.No.161 of 2019 to establish their

relationship with deceased defendant No.1. It is not a suit for partition

filed by the defendant No.1 or any of his heirs where the proposed

AIR 2018 SC 490

AIR 2020 SC 740

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parties are entitled to agitate for their legal status, if any, as legal

representatives of deceased defendant No.1.

7. The original suit is filed by the plaintiff for specific

performance of suit agreement of sale and that the deceased defendant

No.1 is being represented by his widow as defendant No.2, and that if

she is not entitled to represent the estate of deceased defendant No.1

the plaintiff would suffer. In such circumstances in view of disputed

relationship of proposed parties with the deceased defendant No.1, the

plaintiff cannot be compelled to fight against the proposed parties.

Therefore, I do not find any irregularity committed by the court

below. The facts of the present case are distinguishable from the facts

in the above cited decisions. The petitioners are not entitled for the

benefit of the principles laid in the above decisions.

8. Be it stated that, the suit pertains to the year 2008 and the

petitioners/third parties are trying to stall the proceedings by filing one

petition after another. Initially, I.A.No.1320 of 2017 was filed and it

was dismissed on merits on 17.08.2018 and attained finality as no

revision is filed against the said orders. Conveniently, thereafter,

I.A.No.161 of 2019 is filed under Order 22 Rule 4 CPC as the earlier

petition was filed under Order 1 Rule 10 r/w. Order 22 Rule 4 CPC

and after dismissal of this application for default on 23.01.2020, they

have filed the present application in I.A.No.103 of 2020 to restore the

said application in I.A.No.161 of 2019. In fact, the application in

I.A.No.161 of 2019 was dismissed for default, as the

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petitioners/proposed parties have failed to pay the costs and failed to

represent the matter. In such circumstances, the trial Court, after

careful analysis of the facts, has rightly dismissed the said application

and I find no reason to interfere with the orders impugned.

9. In the result, this civil miscellaneous appeal is dismissed with

costs. However, considering the fact that the original suit is filed in

the year 2008 and is still pending, the Court below shall make every

endeavour for disposal of the original suit within Six months from the

date of receipt of the copy of this order. Both the parties to the suit

shall co-operate for expeditious disposal of the suit as directed.

Pending miscellaneous applications, if any, shall stand closed.

_______________________________ A. VENKATESHWARA REDDY, J Date: 21.01.2022

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