Mallappa @ Malleshappa Vs. Smt.drakshyani - Court Judgment

- 1 - R WP No.100406 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE12H DAY OF JULY, 2022 BEFORE THE HON'BLE MR JUSTICE R.DEVDAS WRIT PETITION No.100406 OF2017(GM-CPC) BETWEEN: MALLAPPA @ MALLESHAPPA FAKKIRAPPA GOUDAPPANAVAR, AGE:

68. YEARS, OCC: AGRICULTURE, R/O. BALAGI ONI, KAMALAPUR, DHARWAD. …PETITIONER (BY SRI. SHIVARAJ.

C. BELLAKKI., ADVOCATE) AND:

1. SMT.DRAKSHYANI W/O. CHANNAVEERAPPA ANAND, AGE:

60. YEARS, OCC: AGRICULTURE, R/O. HOMBARDI, TALUK AND DIST: HAVERI.

2. SADANAND S/O. CHANNAVEERAPPA ANAND AGE:

38. YEARS, OCC: AGRICULTURE, R/O: HOMBARDI, TALUK AND DIST: HAVERI.

3. VINOD W/O. SHAHAJI PATIL, AGE:

40. YEARS, OCC: HOUSEHOLD WORK, R/O: NARAYANPUR ONI, KAMALAPUR, DHARWAD. …RESPONDENTS (BY SRI. M. C. HUKKERI., ADVOCATE AND SRI. R.S.HAVALDAR., ADVOCTE FOR R3) (R2 SERVED) (R1 IS DECEASED AND R2 IS TREATED AS LRS OF DECEASED R1) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER

DATED:09.09.2014 ON INTERIM APPLICATION NO.12 FILED FOR AMENDMENT OF THE WRITTEN STATEMENT BY THE RESPONDENT NO.3/ DEFENDANT NO.3, PASSED BY THE III ADDITIONAL CIVIL JUDGE AND JMFC COURT, DHARWAD IN O.S.NO.467/2009, VIDE ANNEXURE-'E' AND ETC.-. 2 - WP No.100406 of 2017 THIS PETITION COMING ON FOR ORDER

S THIS DAY. THE COURT MADE THE FOLLOWING. ORDER

R.DEVDAS J., (ORAL): The application in I.A NO.1/2019 is filed under Order 22 Rule 3 R/w. 151 of CPC, at the hands of the legal representatives of the sole deceased petitioner/ plaintiff, to come on record as legal representatives of the writ petitioner, who passed away during the course of these proceedings, on 26.09.2019.

2. This application is sought to be objected at the hands of the respondent No.3/ defendant No.3/ purchaser from respondents No.1 and 2. It is contended by the leaned counsel for respondent No.3 that since the original suit was filed seeking a decree restraining the defendants, their agents/ servants/ henchman or anybody preventing them permanently from obstructing the peaceful possession and enjoyment of the suit property, the same being a suit for bare injunction, the right to sue does not survive on the legal representatives of the plaintiff. In - 3 - WP No.100406 of 2017 support of her contention, learned counsel for respondent No.3 has sought to place reliance on a latest decision of a Coordinate Bench in the case of Smt. Parvati W/o. Maruti Khatavakar V/s. Sri. Subana and Others in RSA NO.100770/2014 dated 13.12.2021 wherein it was held; “The suit giving raise to this appeal was filed for injunction simpliciter. It is unnecessary to the pleadings in detail. Applying the principles of the Latin maxim “actio personalis moritur cum persona” injunction is a personal remedy against a person, in particular, against the defendant. Therefore, the very prayer itself makes it clear that it is a restriction against that person (defendant) or his agents or his men or anybody claiming under him or through him. This is the usual format in an injunction suit. Once a man dies, the cause of action dies with him and does not pass on to the legal representative…..

3. Further in the case of Smt. Usha Gopal Gowda V/s. Sri. M. T. Tharanath in WP No.15445/2015 dated 12.10.2018 it was similarly held; “12. As noticed above, no cause of action is alleged against the legal representative of the defendant and cause of action alleged in - 4 - WP No.100406 of 2017 the plaint against the sole defendant against whom the injunction was sought. The Trail Court misdirected itself while considering the application filed under Order 22 Rule 4 of CPC and proceeded to allow the application, as if the injunction is sought against the suit schedule property. Hence, the trial Court fell into error in allowing the application filed under Order 22 Rule 4 of CPC.

4. Learned counsel for respondent No.3 further submits that the original plaintiff Sri. Mallappa @ Malleshappa Fakkirappa Goudappanavar could not have filed the suit seeking bare injunction as admittedly he had initially filed OS No.51/1997 against the original owners of the land namely Sri. Channaveerappa Rudrappa Anad seeking decree of specific performance. The said suit was decreed partly, only to the extent of directing refund of the earnest money with interest at the rate of 6% per annum. The original plaintiff filed RA No.111/2003 and the First Appellate Court confirmed the judgment and decree passed by the Trial Court. Not being satisfied the original - 5 - WP No.100406 of 2017 plaintiff filed RSA NO.1186/2008 which is pending consideration before this Court. When the said Regular Second Appeal is pending before this Court, instead of filing an application to implead respondent No.3 herein who is a subsequent purchaser at the hands of the owners of the land, and seeking an order of Temporary injunction against the respondent No.3, the original plaintiff filed another suit in OS No.467/2009. Respondent No.3 purchased the suit scheduled property under a registered sale deed on 20.02.2009. It is therefore sought to be contended that the second suit in OS No.467/2009 is hit by Order 2 Rule 2 of CPC.

5. Per contra learned counsel for petitioner/ applicants would contend that similar objections were raised at the hands of respondent No.3 herein and in fact two applications under Order 7 Rule 11(d) and another under Order 7 Rule 11(a) of CPC were filed seeking rejection of the plaint and both the applications were dismissed by the Trail Court. Respondent No.3 challenged - 6 - WP No.100406 of 2017 the orders of the Trail Court in WP No.83416/2013 and WP No.108718/2016. It is submitted that WP No.83416/2013 was dismissed by order dated 12.12.2014, while the other writ petition is still pending consideration before this Court.

6. Insofar as the objections raised at the hands of learned counsel for respondent No.3 regarding the interlocutory application, learned counsel for the petitioner/ applicants also relies upon the recent decision of another Coordinate Bench of this Court in RSA No.743/2011 in the case of Chennaiah @ Doddachennaiah and Others V/s. Bylappa and Others dated 11.04.2022.

7. Having heard the learned counsels and on going through the judgments cited by the learned counsels, this Court finds that whenever a sole petitioner/ plaintiff dies during the course of the proceedings and an application is filed under Order 22 Rule 3 of CPC seeking to bring the legal representatives of the sole petitioner/ plaintiff on - 7 - WP No.100406 of 2017 record, and when there is objections raised at the hands of the respondents, what is required to be considered is Rule 1 of Order 22 of CPC. Rule 1 of Order 22 of CPC provides that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Therefore what is further required to be considered is whether a right to sue survives in favor of the legal heirs of the deceased petitioner. In this regard this Court finds that the learned Single Judge in the case of Chennaiah (Supra) has taken into consideration a judgment of the Hon’ble Supreme Court in the case of Puran Singh and Others V/s. The State of Punjab and Others reported in (1996) 2 SCC205 What is noticeable is the very same maxim “actio personalis moritur cum persona” which was also noticed by the learned Single Judge in the case of Smt. Parvati (Supra), relied upon by the learned counsel for the petitioner also fell for consideration and it was held that this maxim operates only in limited class of actions ex delicto, such as action for defamation, assault or other - 8 - WP No.100406 of 2017 personal injuries not causing the death of the party, and in other actions were after the death of the party the granting of the relief would be nugatory. It was also held by the Hon’ble Apex Court that there are other class of cases where the right to sue survives in spite of the death of the person against whom the proceeding had been initiated and such right continues to exist against the legal representatives of the deceased who are the parties to the proceedings. It is also noticeable that the issue as to whether a right to sue survives is required to be considered in the light of the provisions contained in Section 306 of the Indian Succession Act. In Melepurath Sankunni Ezhuthassan V/s. Thekittil Geopalankutty Nair, (1986) 1 SCC118 the Hon’ble Apex Court has very clearly held that Section 306 speaks of an action that would survive on the demise of a party to the proceedings and the same is required to be considered in view of the express provision contained in Rule 1 and 11 of Order 22 of the CPC.-. 9 - WP No.100406 of 2017 8. Section 306 of the Indian Succession Act, 1925 reads as follows; “306. Demands and rights of action of, or against deceased survive to and against executor or administrator. All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal code, 1860 (45 of 1860) or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.

9. Further, in the case of Prabhakar Adiga V/s. Gowri and Others, (2017) 4 SCC97 the Hon’ble Apex Court has considered as to whether the right to sue survives on the legal heirs of the sole plaintiff who has filed a suit for permanent injunction simpliciter.-. 10 - WP No.100406 of 2017 10. Ultimately, what falls from the judgments of the Hon’ble Apex Court as considered in Prabhakar Adiga (Supra) is that Courts are required to consider having regard to the nature of relief sought, what is the foundation laid in the plaint. If a relief is sought, even in a suit for bare injunction as to an immovable property which is heritable and partible, the same would enure not only to the benefit of the plaintiff, but would also survive for the benefit of his legal heir. The maxim “action personalis moritur cum persona" was therefore declaration to be limited to a certain class of cases as indicated by the Apex in the case of Girijanandini Devi and Others V/s. Bijendra Narian Choudary, AIR1967SC1124 11. In the light of the principles initiated, this Court finds that the suit was brought by the original plaintiff to protect his interest in the suit schedule property and such interest is inheritable by his legal heirs.

12. Having arrived at this position of law, this Court is of the considered opinion that the writ petition also - 11 - WP No.100406 of 2017 could be disposed of in view of the fact that the original plaintiff is before this Court aggrieved of the impugned order dated 09.09.2014 passed by the Trial Court on I.A No.12 filed at the hands of the respondent No.3/ defendant No.3 seeking amendment of the written statement. The defendant No.3 had sought for amendment of the written statement by adding paragraph No.10(a). On going through the proposed amendment in paragraph No.10(a), it is clear that defendant No.3 sought to bring on record certain factual aspects such as the original plaintiff filing OS No.51/1997 seeking a decree of specific performance of the agreement of sale and that the said suit was partly decreed directing the owners of the land to refund the earnest money with interest at 6% per annum; that the said judgment was confirmed in RA NO.111/2003 and the original plaintiff had filed RSA NO.1186/2008 which is pending consideration before this Court. It is further sought to be added that the plaintiff has not sought for injunction in the earlier suit and therefore - 12 - WP No.100406 of 2017 plaintiff could not have instituted a suit for bare injunction by filing a second suit during pendency of Regular Second Appeal and the suit is hit by Order 2 Rule 2 of CPC.

13. Having regard to the admitted fact that earlier respondent No.3/ defendant No.3 had filed two interlocutory applications under Order 7 Rule 11(a) and Order 7 Rule 11(d) of CPC seeking rejection of the plaint and both those applications were dismissed by the Trail Court, even if the said averments as sought to be added in the writ statement is permitted to brought on record, it would not prejudice the case of the plaintiff. Therefore this Court is of the considered opinion that no fault could be found in the impugned order dated 09.12.2016 passed by the Trail Court in allowing the application for amendment of the written statement.

14. Consequently, while allowing the interlocutory application in I.A No.1/2019 to bring the legal representatives of the deceased petitioner on record and permitting the learned counsel for petitioner to carry out - 13 - WP No.100406 of 2017 the amendment in the cause title, this Court proceeds to pass the following; ORDER

i) The writ petition is dismissed. ii) The petitioner/ legal representative of the original plaintiff are permitted to make an application before the Trail Court to bring themselves on record. As and when such application is made, the Trail Court shall allow the same in view of the fact that such application is already filed before this Court and the legal heirs of the petitioner/ plaintiff were permitted to be brought on record in this proceedings. iii) The Trail Court is however directed to make all endeavor to dispose of the suit as expeditiously as possible and at any rate within a period of one year from the date of receipt of copy of this Order.-. 14 - WP No.100406 of 2017 Ordered accordingly. SD JUDGE PJ