Manjula W/O Ningappa Dastikoppa Vs. Fakkirappa S/O Madivalappa Guladkoppa, - Court Judgment

SooperKanoon Citationsooperkanoon.com/1195583
CourtKarnataka Dharwad High Court
Decided OnJun-22-2015
Case NumberWP 102360/2015
JudgeB.VEERAPPA
AppellantManjula W/O Ningappa Dastikoppa
RespondentFakkirappa S/O Madivalappa Guladkoppa,
Excerpt:
:1. : ® in the high court of karnataka dharwad bench dated this the22d day of june, 2015 before the hon’ble mr. justice b. veerappa w.p. no.102360/2015 (gm/cpc) between: manjula w/o ningappa dastikoppa age:28 years, occ:household and agriculture, r/o: metyal, tq:bailhongal, dist:belgavi. (by sri.: r h angadi, adv.,) and ... petitioner fakkirappa s/o madivalappa guladkoppa, age:49 years, occ:agriculture, r/o:madabhavi, tq & dist: dharwad. ... respondent writ petition is filed under articles226and227of the constitution of india, praying to quash the impugned order annexure-g, dated2001.2015, in ma no.36/2014, passed by the learned iiird additional senior civil judge, dharawd, and consequently confirm the order dated :2. :28. 07.2014, passed in o.s.no.364/2011, passed by the1t additional civil per annexure-e. judge, dharwad as this writ petition coming on for prl. hearing this day, the court made the following: order the defendant filed the above writ petition challenging the order dated 20.01.2015 made in m.a. no.36/2014 on the file of iii addl. senior civil judge and cjm, dharwad allowing the appeal under order 22 rule 3 r/w section 151 of code of civil procedure by setting aside the order dated 20.07.2014 made in o.s. no.364/2011 on the file of i addl. civil judge, dharwad and directed the trial court to re-open the case and hold enquiry on i.a. filed under order 22 rule 3 r/w section 151 of code of civil procedure and proceed in accordance with law.2. the brief facts of the case are; that one basappa s/o. fakkirappa yekkundi @ kalled had filed suit in o.s. no.364/2011 for the relief of declaration and consequential relief of permanent injunction in respect of the suit :3. : properties and contended that he was the absolute owner in possession of the suit schedule properties to an extent of half share left by shivavva w/o. maralingappa and injunction etc., the present petitioner who was the defendant before the trial court filed written statement and denied the entire plaint averments and sought for dismissal of the suit.3. the plaintiff died during the pendency of the suit. hence, the present respondent filed an application under order 22 rule 3 r/w section 151 of code of civil procedure to permit him to come on record as legal heir of deceased plaintiff on the basis of will and gift deed executed by the plaintiff in his favour. the said application was resisted by the defendant/petitioner. after considering the application and objection, the trial court by its order dated 28.07.2014 has rejected the application under order 22 rule 3 of code of civil procedure holding that the present applicant has not made out sufficient grounds to show that he is the only one legal heir of the deceased plaintiff. aggrieved by the said order, the respondent filed an appeal before :4. : the 3rd addl. senior civil judge, dharwad in m.a. no.36/2014 who after hearing both the learned counsel for the parties, by his impugned order dated 20.01.2015 has allowed the appeal and set aside the order passed by the trial court and directed the trial court to reopen the case and hold enquiry on the application filed by the respondent as contemplated under law. against the said order, the present writ petition is filed.4. 5. i have heard the learned counsel for the petitioner. sri.r.h.angadi, learned counsel for the petitioner has contended that the very suit filed by the plaintiff is not maintainable. hence, question of considering the present application under order 22 rule 3 of code of civil procedure does not arise. therefore, the appellate court is not justified in reversing the order passed by the trial court. he also contended that the appellate court ought to have rejected the application since respondent is claiming as legal heir on the strength of the alleged will executed by the deceased plaintiff. therefore, he sought to set aside the order passed by the appellate court. :5. :6. i have given my anxious consideration to the arguments advanced by the learned counsel for the petitioner and perused the entire material on record.7. it is not in dispute that the original plaintiff filed the suit for declaration to an extent of half share left by shivavva w/o. marilingappa and for permanent injunction in respect of immovable properties who died during the pendency of the suit. the respondent filed an application under order 22 rule 3 r/w section 151 of code of civil procedure, to come on record as legal representatives of the deceased plaintiff on the basis of the will and gift deed. the trial court rejected the said application on the ground that he has not made out any sufficient ground to show that he is the only legal heir of the deceased-plaintiff without considering the mandatory provisions of order 22 rule 5 of code of civil procedure. the same has been considered by the appellate court while passing the impugned order.8. it is worthwhile, to extract order 22 rule 5 of code of civil procedure, which reads as under: :6. : ‘determination of question as to legal representative.- whether a question arises as to whether any person is or is not the legal representative of a decreased plaintiff or a deceased defendant, such question shall be determined by the court: provided that where such question arises before an appellate court, that court may, before determining the question, direct any subordinate court to try the question and to return the records together with evidence, if any recorded at such trial, its findings and reasons therefore, and the appellate court may take the same into consideration in determining the question.9. a plain reading of the said provision makes it clear that, it is mandatory on the part of the trial court to hold an enquiry when the application filed under order 22 rule 3 of code of civil procedure by any person which is disputed by the other side in the pending suit between the parties.10. admittedly, in the present case, the defendant is disputing the very relationship of the respondent- applicant with the deceased plaintiff who wants to come on record under order 22 rule 3 of code of civil procedure, the said exercise has not :7. : been done by the trial court. therefore, the appellate court considering the entire material on record has recorded a categorical finding that order 22 rule 5 of code of civil procedure deals with the determination question has to the legal representative. the said provision states that “where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or the deceased defendant, such question shall be determined by the court”. a reading of section 22 rule 5 of code of civil procedure, it is crystal clear that the court has to determine the status of legal representative of the deceased parties to the suit by holding enquiry. in the present case, the appellant claiming that he is the legal representative of the deceased plaintiff and respondent-defendant denied the same. under these circumstances, enquiry is required to determine the status of the appellant as the legal representative of the deceased plaintiff. the learned trial judge has lost the sight of the provisions of order 22 rule 5 of code of civil procedure. when the appellant sought to come on record as the legal representative :8. : of the deceased plaintiff on the basis of the will and gift and the respondent has opposed the said claim of the appellant, the trial court ought to have hold an enquiry on the said application to determine the status of the appellant and the trial court without holding an enquiry, rejected the l.r. application filed by the appellant and dismissed the suit as abated. therefore, he set aside the order passed by the trial court with a direction to the trial court to re-open the case and hold enquiry on the application filed by the respondent under order 22 rule 3 r/w section 151 of cpc.11. the hon’ble apex court while considering the provisions of order 22 rule 5 of code of civil procedure in the case of kanthiya singh santok singh and others v. kartar singh reported in (2009) 5 scc155has held as under:19. thus considering the ambiguous position regarding the status of the appellants relating to their status as tenants, it was necessary for the high court to remit the matter to the :9. : trial court for a proper determination of the factual aspects whether the appellants were in fact carrying on business with late santok singh at the time of his death by taking evidence and thereafter, come to a finding whether the appellants shall brought on record in second appeal as the legal representatives of late santok singh.12. the hon’ble supreme court while considering the provisions of rule 4 and 5 of order 22 of code of civil procedure in the case of jaladi suguna (deceased through lrs. v. satya sai central trust and others reported in (2008) 8 scc521has held as under:16. the provisions of rules 4 and 5 of order 22 are mandatory. when a respondent in an appeal dies, the court cannot simply say that it will hear all rival claimants to the estate of the deceased respondent and proceed to dispose of the appeal. nor can it implead all persons claiming to be legal representatives, as parties to the apeal without deciding who will represent the estate of the deceased, and proceed to hear the appeal on merits. the court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits. the code clearly provides that where a question arises as to whether any person is or is not the legal :10. : representative of a deceased respondent, such question shall be determined by the court. the code also provides that where one of the respondents dies and the right to sue does not survive against the surviving respondents, the court shall, on an application made in that behalf, cause the legal representatives of the deceased respondent to be made parties, and then proceed with the case. though rule 5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, rule 4 read with rule 11 makes it clear that the appeal can be heard only after the legal representatives are brought on record.19. we, accordingly, allow this appeal and set aside the judgment dated 19-9-2006, restore the appeal to the file of the high court, with the following directions: (i) the high court shall first decide the dispute between the husband of the deceased on the one hand, and her nieces and nephews on the other, after considering the evidence and findings dated 28-11-2005 recorded by the trial court and hearing the rival claimants. (ii) after such determination, the person(s) determined to be person(s) entitled to represent the estate of the :11. : deceased shall be brought on record as the legal representatives of the deceased. (iii) thereafter, the appeal shall be heard on merits and disposed of in accordance with law.13. in view of the aforesaid reasons and the law declared by the hon’ble supreme court in the cases referred to supra, this court is of the considered opinion that the appellate court has passed well crafted order and the same is in accordance with law. the petitioner has not made out any ground to interfere under articles 226 and 227 of the constitution of india. accordingly, writ petition is dismissed. bs sd/- judge
Judgment:

:

1. : ® IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE22d DAY OF JUNE, 2015 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA W.P. NO.102360/2015 (GM/CPC) BETWEEN: MANJULA W/O NINGAPPA DASTIKOPPA AGE:28 YEARS, OCC:HOUSEHOLD AND AGRICULTURE, R/O: METYAL, TQ:BAILHONGAL, DIST:BELGAVI. (BY SRI.: R H ANGADI, ADV.,) AND ... PETITIONER FAKKIRAPPA S/O MADIVALAPPA GULADKOPPA, AGE:49 YEARS, OCC:AGRICULTURE, R/O:MADABHAVI, TQ & DIST: DHARWAD. ... RESPONDENT WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER

ANNEXURE-G, DATED2001.2015, IN MA NO.36/2014, PASSED BY THE LEARNED IIIRD ADDITIONAL SENIOR CIVIL JUDGE, DHARAWD, AND CONSEQUENTLY CONFIRM THE ORDER

DATED :

2. :

28. 07.2014, PASSED IN O.S.NO.364/2011, PASSED BY THE1T ADDITIONAL CIVIL PER ANNEXURE-E. JUDGE, DHARWAD AS THIS WRIT PETITION COMING ON FOR PRL. HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER

The defendant filed the above writ petition challenging the order dated 20.01.2015 made in M.A. No.36/2014 on the file of III Addl. Senior Civil Judge and CJM, Dharwad allowing the appeal under Order 22 Rule 3 R/w Section 151 of Code of Civil Procedure by setting aside the order dated 20.07.2014 made in O.S. No.364/2011 on the file of I Addl. Civil Judge, Dharwad and directed the Trial Court to re-open the case and hold enquiry on I.A. filed under Order 22 Rule 3 r/w Section 151 of Code of Civil Procedure and proceed in accordance with law.

2. The brief facts of the case are; That one Basappa S/o. Fakkirappa Yekkundi @ Kalled had filed suit in O.S. No.364/2011 for the relief of declaration and consequential relief of permanent injunction in respect of the suit :

3. : properties and contended that he was the absolute owner in possession of the suit schedule properties to an extent of half share left by Shivavva W/o. Maralingappa and injunction etc., The present petitioner who was the defendant before the Trial Court filed written statement and denied the entire plaint averments and sought for dismissal of the suit.

3. The Plaintiff died during the pendency of the suit. Hence, the present respondent filed an application under Order 22 Rule 3 r/w Section 151 of Code of Civil Procedure to permit him to come on record as legal heir of deceased plaintiff on the basis of Will and gift deed executed by the plaintiff in his favour. The said application was resisted by the defendant/petitioner. After considering the application and objection, the Trial Court by its order dated 28.07.2014 has rejected the application under Order 22 Rule 3 of Code of Civil Procedure holding that the present applicant has not made out sufficient grounds to show that he is the only one legal heir of the deceased plaintiff. Aggrieved by the said order, the respondent filed an appeal before :

4. : the 3rd Addl. Senior Civil Judge, Dharwad in M.A. No.36/2014 who after hearing both the learned Counsel for the parties, by his impugned order dated 20.01.2015 has allowed the appeal and set aside the order passed by the Trial Court and directed the Trial Court to reopen the case and hold enquiry on the application filed by the respondent as contemplated under law. Against the said order, the present writ petition is filed.

4. 5. I have heard the learned Counsel for the petitioner. Sri.R.H.Angadi, learned Counsel for the petitioner has contended that the very suit filed by the plaintiff is not maintainable. Hence, question of considering the present application under order 22 Rule 3 of Code of Civil Procedure does not arise. Therefore, the appellate Court is not justified in reversing the order passed by the Trial Court. He also contended that the appellate Court ought to have rejected the application since respondent is claiming as legal heir on the strength of the alleged Will executed by the deceased plaintiff. Therefore, he sought to set aside the order passed by the appellate Court. :

5. :

6. I have given my anxious consideration to the arguments advanced by the learned Counsel for the petitioner and perused the entire material on record.

7. It is not in dispute that the original plaintiff filed the suit for declaration to an extent of half share left by Shivavva W/o. Marilingappa and for permanent injunction in respect of immovable properties who died during the pendency of the suit. The respondent filed an application under Order 22 Rule 3 r/w Section 151 of Code of Civil Procedure, to come on record as legal representatives of the deceased plaintiff on the basis of the Will and gift deed. The Trial Court rejected the said application on the ground that he has not made out any sufficient ground to show that he is the only legal heir of the deceased-plaintiff without considering the mandatory provisions of order 22 Rule 5 of Code of Civil Procedure. The same has been considered by the appellate Court while passing the impugned order.

8. It is worthwhile, to extract order 22 Rule 5 of Code of Civil Procedure, which reads as under: :

6. : ‘Determination of question as to legal representative.- Whether a question arises as to whether any person is or is not the legal representative of a decreased plaintiff or a deceased defendant, such question shall be determined by the Court: Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any recorded at such trial, its findings and reasons therefore, and the Appellate Court may take the same into consideration in determining the question.

9. A plain reading of the said provision makes it clear that, it is mandatory on the part of the Trial Court to hold an enquiry when the application filed under Order 22 Rule 3 of Code of Civil Procedure by any person which is disputed by the other side in the pending suit between the parties.

10. Admittedly, in the present case, the defendant is disputing the very relationship of the respondent- applicant with the deceased plaintiff who wants to come on record under Order 22 Rule 3 of Code of Civil Procedure, the said exercise has not :

7. : been done by the Trial Court. Therefore, the appellate Court considering the entire material on record has recorded a categorical finding that order 22 Rule 5 of Code of Civil Procedure deals with the determination question has to the legal representative. The said provision states that “Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or the deceased defendant, such question shall be determined by the Court”. A reading of Section 22 Rule 5 of Code of Civil Procedure, it is crystal clear that the Court has to determine the status of legal representative of the deceased parties to the suit by holding enquiry. In the present case, the appellant claiming that he is the legal representative of the deceased plaintiff and respondent-defendant denied the same. Under these circumstances, enquiry is required to determine the status of the appellant as the legal representative of the deceased plaintiff. The learned trial Judge has lost the sight of the provisions of Order 22 Rule 5 of Code of Civil Procedure. When the appellant sought to come on record as the legal representative :

8. : of the deceased plaintiff on the basis of the Will and gift and the respondent has opposed the said claim of the appellant, the Trial Court ought to have hold an enquiry on the said application to determine the status of the appellant and the Trial Court without holding an enquiry, rejected the L.R. application filed by the appellant and dismissed the suit as abated. Therefore, he set aside the order passed by the Trial Court with a direction to the Trial Court to re-open the case and hold enquiry on the application filed by the respondent under Order 22 Rule 3 r/w Section 151 of CPC.

11. The Hon’ble Apex Court while considering the provisions of Order 22 Rule 5 of Code of Civil Procedure in the case of KANTHIYA SINGH SANTOK SINGH AND OTHERS V. KARTAR SINGH REPORTED IN (2009) 5 SCC155has held as under:

19. Thus considering the ambiguous position regarding the status of the appellants relating to their status as tenants, it was necessary for the High Court to remit the matter to the :

9. : Trial Court for a proper determination of the factual aspects whether the appellants were in fact carrying on business with late Santok Singh at the time of his death by taking evidence and thereafter, come to a finding whether the appellants shall brought on record in second appeal as the legal representatives of late Santok Singh.

12. The Hon’ble Supreme Court while considering the provisions of Rule 4 and 5 of Order 22 of Code of Civil Procedure in the case of Jaladi Suguna (deceased through LRs. V. Satya Sai Central Trust and others reported in (2008) 8 SCC521has held as under:

16. The provisions of Rules 4 and 5 of Order 22 are mandatory. When a respondent in an appeal dies, the Court cannot simply say that it will hear all rival claimants to the estate of the deceased respondent and proceed to dispose of the appeal. Nor can it implead all persons claiming to be legal representatives, as parties to the apeal without deciding who will represent the estate of the deceased, and proceed to hear the appeal on merits. The court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits. The Code clearly provides that where a question arises as to whether any person is or is not the legal :

10. : representative of a deceased respondent, such question shall be determined by the Court. The Code also provides that where one of the respondents dies and the right to sue does not survive against the surviving respondents, the Court shall, on an application made in that behalf, cause the legal representatives of the deceased respondent to be made parties, and then proceed with the case. Though Rule 5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, Rule 4 read with Rule 11 makes it clear that the appeal can be heard only after the legal representatives are brought on record.

19. We, accordingly, allow this appeal and set aside the judgment dated 19-9-2006, restore the appeal to the file of the High Court, with the following directions: (i) The High Court shall first decide the dispute between the husband of the deceased on the one hand, and her nieces and nephews on the other, after considering the evidence and findings dated 28-11-2005 recorded by the Trial Court and hearing the rival claimants. (ii) After such determination, the person(s) determined to be person(s) entitled to represent the estate of the :

11. : deceased shall be brought on record as the legal representatives of the deceased. (iii) Thereafter, the appeal shall be heard on merits and disposed of in accordance with law.

13. In view of the aforesaid reasons and the law declared by the Hon’ble Supreme Court in the cases referred to supra, this Court is of the considered opinion that the appellate Court has passed well crafted order and the same is in accordance with law. The petitioner has not made out any ground to interfere under Articles 226 and 227 of the Constitution of India. Accordingly, writ petition is dismissed. BS Sd/- JUDGE