Telangana High Court
Thandu Ashok Ashok Kumar vs Domalapalli Harideep on 21 March, 2025
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
CIVIL REVISION PETITION No.3562 OF 2023
ORDER:
Aggrieved by the docket order dated 23.08.2023 passed by
the Principal Junior Civil Judge at Nalgonda in SR.No.453 of 2023
in Unregistered O.S.No.NIL of 2023, this Civil Revision Petition is
filed.
2. By the impugned order, the trial Court rejected the plaint
presented by the revision petitioner herein.
3. Heard Sri G.Venkata Narayana, learned counsel for
petitioner. Perused the material available on record.
4. Brief factual matrix of the case is that the plaintiff filed a suit
for recovery of money against the defendant basing on two
promissory notes, i.e, one promissory note dated 24.08.2020
executed by deceased father of defendant for a sum of Rs.1 lakh
and another promissory note dated 01.08.2021 executed by
defendant for a sum of Rs.40,000/-. The office of the trial Court
returned the bundle raising two objections, firstly, the LRs of the
deceased borrower are not made party to the suit and secondly, the
suit is basing on two promissory notes executed by different
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persons in respect of different transactions, therefore, the suit is not
maintainable.
5. The plaintiff has re-submitted the bundle with clarification
that as per Section 53 of CPC and Order II Rule 3 CPC and in the
light of the judgment of the erstwhile High Court of Andhra
Pradesh in Bandaru Srinivasa Rao Vs. Sreyobhilashi Chit Funds,
Wyra, Khammam District and others 1 and the judgment of the
Hon'ble Supreme Court reported in AIR 1952 SC 170, the suit is
maintainable.
6. The trial Court has examined the clarification given by the
plaintiff and by the impugned order returned the plaint. The trial
Court observed that as per Section 53 CPC, if the property of a
deceased person comes to the hands of his son or other descendant,
the latter would be made liable to pay the debt of deceased,
deeming it as the property of the deceased. In the present case, only
one of the sons of the deceased borrower was made party stating
that he has inherited the property of his father. However, no
material is placed on record to show that partition has taken place
among the legal heirs and that the property has come to defendant
alone.
2008(1) ALD 392
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7. Insofar as two promissory notes is concerned, the trial Court
held that plaintiff may unite several cause of actions pertaining to
the same defendant, but, in the case on hand, there are two
promissory notes, one executed by defendant and another by
deceased father of the defendant at different times and in respect of
different transactions, as such, Order II Rule 3 CPC is not
applicable and accordingly, rejected the plaint. Aggrieved by the
same, the present Revision Petition is filed.
8. Learned counsel for the petitioner contended that the trial
Court was not justified in returning the plaint since the defendant is
in possession of the property of his deceased father, therefore, the
LRs of the deceased borrower are not necessary parties to the suit
as per Section 53 CPC. He further contended that two promissory
notes are executed by different persons in favour of one person i.e.,
the plaintiff and hence, trial Court erred in observing that Order II
Rule 3 CPC is not applicable to the present suit and prayed this
Court to set aside the impugned order.
9. For better appreciation, it apposite to extract Section 53 CPC
as well as Order II Rule 3 CPC as hereunder:-
"Section 53 CPC- Liability of ancestral property
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For the purposes of section 50 and section 52, property
in the hands of a son or other descendant which is
liable under Hindu law for the payment of the debt of a
deceased ancestor, in respect of which a decree has
been passed, shall be deemed to be property of the
deceased which has come to the hands of the son or
other descendant as his legal representative.
Order II Rule 3 CPC reads as hereunder:-
Joinder of causes of action.--(1) Save as otherwise
provided, a plaintiff may unite in the same suit several
causes of action against the same defendant, or the same
defendants jointly; and any plaintiffs having causes of
action in which they are jointly interested against the
same defendant or the same defendants jointly may unite
such causes of action in the same suit.
10. A reading of Order II Rule 3 CPC makes it clear that two or
more cause of actions relating to same defendant can be combined
together and a single suit can be filed. However, in the present
case, one promissory note was executed by the defendant and
another promissory note was executed by deceased father of the
defendant. Therefore, it constitutes two different causes of actions
by two different persons and as such, as rightly observed by the
trial Court, Order II Rule 3 CPC is not applicable to the present
case.
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11. Further, it is pertinent to note that in the plaint, the plaintiff
himself averred that the deceased borrower died leaving behind
him, the defendant, his mother, his brothers and his sisters as his
legal heirs. Learned counsel for the plaintiff admitted that no
partition has taken place among the legal heirs of the deceased
borrower and in such an event, the property of the deceased
borrower in the hands of the defendant cannot be construed as
property falling within the purview of Section 53 CPC.
12. For the foregoing reasons, this Court is of the considered
view that the impugned order does not suffer from any illegality or
irregularity warranting interference by this Court and the Revision
Petition is liable to be dismissed.
13. As a result, this Revision Petition is dismissed.
14. Miscellaneous petitions pending, if any, shall stand closed.
No costs.
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LAXMI NARAYANA ALISHETTY, J
Date:21.03.2025
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