Smt.C.Leelamma vs P.Satyanarayana Since Died Per ...
2023 Latest Caselaw 2460 Tel

          THE HON'BLE SMT. JUSTICE P.SREE SUDHA

                    I.A. NO.1, 2 and 3 of 2023

                              In/and

                SECOND APPEAL No.910 of 2007

COMMON ORDER:


        I.A.No.1 of 2023 is filed to condone the delay of 3509 days

in filing the Legal Representative petition to bring the legal

representative of the sole appellant on record.


2.      I.A.No.2 of 2023 is filed to set aside the abatement of the

appeal against the sole appellant.


3.      I.A.No.3 of 2023 is filed to permit the petitioner No.2

therein to bring on record as appellant No.2, being legal

representative of petitioner No.1/Sole appellant.


4.      In I.A.No.3 of 2023, the proposed appellant No.2/C.Sri

Ram filed an affidavit stating that his mother/sole appellant

filed S.A.No.910 of 2007 challenging the judgment and decree

dated 23.04.2007, in A.S.No.332 of 2002 on the file of XIII

Additional Chief Judge (FTC), City Civil Court, Hyderabad, in

which     the   judgment   and    decree   dated    23.09.2002   in

O.S.No.5117 of 1995 on the file of IX Junior Civil Judge, City
                                        IA No.1, 2, 3 of 2023 in/and SA.No.910of 2007


                                2


Civil Court, Hyderabad was confirmed. He stated that his

mother/appellant executed a Will dated 19.09.2009, wherein

she bequeathed the suit schedule property in his favour, as

such it is necessary to bring him on record as Legal

Representative of the sole appellant. He has also enclosed a

copy of the death certificate showing that his mother died on

23.03.2011. He further stated that he came to know about the

pendency of the appeal only upon the intimation of the counsel

in the month of January, 2023. Prior to that he was not aware

of the pendency of the appeal, as such he filed an application in

I.A.No.1 of 2023 to condone the delay of 3509 days in filing the

Legal Representative petition to bring him on record and also

filed I.A.No.2 of 2023 to set aside the abatement of the appeal

against the sole appellant and I.A.No.3 of 2023 to permit the

petitioner No.2 to bring on record as appellant.


5.    In the counter filed by respondent No.3 in all the Interim

Applications, he stated that the main appeal has become

infructuous as the sole appellant died on 23.03.2011. Petitioner

No.2/proposed appellant is the second son of the deceased

C.Leelamma. Execution of the Will on 19.09.2009 bequeathing

the properties in favour of the petitioner No.2/proposed legal IA No.1, 2, 3 of 2023 in/and SA.No.910of 2007

representative does not have any bearing either on the main

appeal or in these petitions. Informing the listing of the case by

the counsel would not be a date of knowledge and that date

cannot be taken as starting point for filing the petition. The

petitioner/proposed appellant is a practicing advocate and

having no knowledge about the pendency of the appeal is not an

excuse. The Will Deed shows that deceased has 3 sons and a

daughter. One son died before the execution of the will and the

surviving sons i.e. C.Narsing Rao, C.Sriram (Petitioner) and a

daughter Savitri Bai, C.Rama Devi W/o Late Satyanarayana

(elder daughter in law of Late C.Leelamma), C.Anil kumar,

C.Chandrakala, C.Pallavi being the grand children of Leelamma

and children of late Satyanarayana who was elder son of Late

C.Leelamma have to be brought on record as Legal

Representatives. Basing on the Will Deed, petitioner

No.2/proposed appellant cannot be allowed to be brought on

record as sole legal representative of the deceased appellant.

The Will Deed was never a part of the record either before this

Court or before the lower Courts and cannot be treated as sole

instrument for treating the petitioner No.2/proposed appellant

as Legal Representative of the deceased appellant.

IA No.1, 2, 3 of 2023 in/and SA.No.910of 2007

6. He further submitted that in the total affidavit petitioner

No.2 did not state as to why the delay was caused for filing the

legal representative and set aside abatement petitions. In the

absence of reason for cause of delay of 12 years, these petitions

deserve to be dismissed. The Legal Representative petition and

set aside abatement petition are to be dismissed, as all the

surviving children and children of the deceased son of the

appellant are not made as proposed legal representatives of the

deceased. The main Second Appeal is filed against the

concurrent findings of both the Courts and appellant lost her

case of declaration and recovery of possession in both the

Courts. The present applications are filed with extraordinary

delay only to drag on the matter and to cause harassment to the

respondents and nothing else. In these circumstances, these

petitions are devoid of merits and to be dismissed with costs.

7. Heard arguments of both sides and perused the entire

evidence on record.

8. O.S.No.5117/1995 was filed by C.Leelamma for perpetual

injunction in December, 1995, written statement was filed on

19.1.2000 and the suit was dismissed on 23.09.2002. Aggrieved

by the said Judgment, she preferred an appeal in A.S.No.332 of IA No.1, 2, 3 of 2023 in/and SA.No.910of 2007

2002 and the same was also dismissed on 23.04.2007.

Aggrieved by the concurrent findings of both the Courts, she

preferred the Second Appeal on 26.07.2007 and during the

pendency of the Second Appeal, she died.

9. A memo was filed on behalf of the appellant on

27.11.2012, in which it was stated that respondent No.4

remained exparte in A.S.No.332 of 2002 and he was not

claiming any relief against the appellant.

10. The petitioner No.2 herein is an advocate and aged about

50 years as on the date of filing these petitions before this

Court. Therefore it cannot be said that he has no knowledge of

the proceedings before the First Appellate Court in the year

2002 and also the suit before the trial Court in the year 1995.

Moreover, suit was filed by his mother and he might have been

looking into the legal proceedings before both the Courts on

behalf of his mother. It is a simple suit for injunction, filed by

C.Leelamma, when it was dismissed, she filed the Appeal, before

the first appellate Court, even after the dismissal of the first

appeal, she filed Second Appeal. It clearly shows that she could

not have continued the litigation till the stage of Second Appeal

without the active cooperation of the present petitioner No.2 IA No.1, 2, 3 of 2023 in/and SA.No.910of 2007

herein, who is an advocate. She died in the year 2011 during

the pendency of the Second Appeal and he stated that she

executed the Will on 19.09.2009. It is mainly contended that the

Will was executed in his favour, as such he should be brought

on record as Legal representative. Respondent mainly contended

that there are other Legal representatives, but the petitioner

herein basing on the Will intended to come on record as a sole

legal representative and it is not proper. If at all C.Leelamma

has executed Will in the year 2009, she should have filed it in

the Court before 2011, as she survived for nearly 3 years even

after the execution of the Will and thus it blatantly appears that

after the death of the appellant, he came up with all these

petitions to gain wrongfully and to protract the litigation.

Admittedly she filed suit for injunction before the Trial Court

and it was dismissed by both the Courts, even then she

preferred Second Appeal in the year 2007 and she executed the

alleged Will in the year 2009. Though she survived till 2011, he

kept quiet till 2023 and simply stated that when the counsel on

record informed him about the listing of the case, then only he

came to know about the suit. As such, he filed the Interim

Applications to condone the delay and to set aside the

abatement and to bring him as Legal Representative on record.

IA No.1, 2, 3 of 2023 in/and SA.No.910of 2007

The reason stated by him for an abnormal delay of 3509 days

i.e. for more than 9 years is neither convincing nor satisfactory,

more over, there are other Legal representatives. Though the

appellant C.Leelamma was having two more sons and a

daughter, he intended to come alone on record as Legal

Representative, as such all the petitions filed by him are devoid

of merits and are to be dismissed.

11. In the result, as the Second Appeal is filed by C.Leelamma

and she died in the year 2011 and her Legal Representatives

were not brought on record in time, the applications filed before

the Court in I.A.Nos.1, 2 and 3 of 2023 are dismissed. As such

S.A.No.910 of 2007 is also liable to be dismissed.

12. Accordingly, the present Second Appeal is dismissed as

abated. No Costs.

Pending miscellaneous applications, if any, shall stand

closed.

___________________________ JUSTICE P.SREE SUDHA Date: 19.09.2023 BV