Allowed

Annapurna @ Dharmabia W/O Chintarajaiah (Died) Lrs Harishankar Pandharinath Mukkawar and Anr. v. Papya Chintarajeshwar and Ors.

Bombay HC23 Aug 2012WP/3354/2012

Case brief

AI extract

What is this about?

This writ petition challenged a one-line order by the District Court allowing respondents to be recorded as legal representatives of a deceased litigant without following the procedure mandated for resolving rival claims. The court quashed the order for failing to adhere to Order XXII Rule 5 CPC.

What did the court decide?

Impugned order of the District Court allowing respondents to be recorded as legal representatives is quashed; respondents directed to follow Order XXII Rule 5 CPC for deciding applications.

Annapurna @ Dharmabia W/O Chintarajaiah (Died) Lrs Harishankar Pandharinath Mukkawar and Anr. Vs Papya Chintarajeshwar and Ors. — Bombay HC (2012) — LawSathi Research

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1 W.P. 3354.2012 - [ J ]

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 3354 OF 2012

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Annapurna @ Dharmabai W/o Chintarajaiah – died through L.Rs. :

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1-A. Harishankar S/o Pandharinath Mukkawar, Age : 43 Yrs., Occ. Business and agriculture, R/o : Dharmabad, Tq. Dharmabad, Dist. : Nanded. 1-B. Sakharam S/o Gangadhar Mukkawar, Age : 45 Yrs., Occ. Business and agriculture, R/o : Dharmabad, Tq. Dharmabad, Dist. : Nanded. .... PETITIONERS

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V E R S U S

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Papya S/o Chintarajeshwar Mukkawar, Age : 60 Yrs., Occ. Business and agriculture, R/o : Dharmabad, Tq. Dharmabad,

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Dist. : Nanded.

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Ramkishan S/o Chintarajeshwar Mukkawar, Age : 52 Yrs., Occ. Business and agriculture, R/o : Dharmabad, Tq. Dharmabad, Dist. : Nanded. 3. Sanjay S/o Chintarajeshwar

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2 W.P. 3354.2012 - [ J ]

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Mukkawar, Age : 60 Yrs., Occ. Business and agriculture, R/o : Dharmabad, Tq. Dharmabad, Dist. : Nanded. 4. Ajay S/o Chintarajeshwar Mukkawar, Age : 28 Yrs., Occ. Business and agriculture, R/o : Dharmabad, Tq. Dharmabad, Dist. : Nanded. 5. Paresh S/o Chintarajeshwar Mukkawar, Age : 25 Yrs., Occ. Business and agriculture, R/o : Dharmabad, Tq. Dharmabad, Dist. : Nanded. .... RESPONDENTS

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Mr. Arvind Deshmukh, Advocate for the Petitioners. Mr. Vivek Bhavthankar, Advocate for the Respondents.

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CORAM : S.V.GANGAPURWALA, J. DATE OF JUDGMENT : 23/08/2012.

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ORAL JUDGMENT :

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Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing.

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One Annapurnabai @ Dharmabai W/o Chintarajaiah [ For short, ‘ Annapurnabai ’ ] had filed Civil Suit. The same came to be

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3 W.P. 3354.2012 - [ J ]

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decreed. Aggrieved thereby the present respondents filed Appeal before the District Court. During the pendency of the Appeal, Annapurnabai, who was respondent no. 1 in R.C.A. No. 15 of 2006, died. The respondents filed an application [ Exh. 36 ] for bringing them on record as legal representatives, on or about 07/11/2006.

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The present petitioner nos. 1 and 2 also filed an application

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for bringing them on record as legal representatives of deceased Annapurnabai. They claimed heir ship on the basis of the Will. The said applications are filed on or about 12/02/2007 and 29/01/2007.

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It appears that no orders are passed on the applications filed by the petitioners, but the application of the present respondents [ Exh. 36 ] is allowed by the District Court by passing one line order which reads as, “ L.Rs. appear. Hence, they be taken on record ”. The said order is assailed in the present Writ Petition.

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Heard the learned counsel for the respective parties.

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Whenever there are rival claims amongst the legal

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representatives, then in such circumstance, the Court has to resort to the provisions of Order XXII Rule 5 of the Code of Civil Procedure [ For short,

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4 W.P. 3354.2012 - [ J ]

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‘ the Code ’ ]. Order XXII Rule 5 of the Code reads thus, :

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“ Determination of question as to legal

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representative - Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court :

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[ 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 therefor, and the Appellate Court may take the same into consideration in determining the question. ] ”.

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It is manifest that no such procedure has been followed. No orders are passed on the applications filed by the petitioners and on an application filed by the respondent, in one line, the same has been allowed without assigning any reasons. The said order as such can not be sustained.

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In view of the above, the impugned order is quashed and set

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aside.

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5 W.P. 3354.2012 - [ J ]

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The District Court shall resort to the procedure as

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contemplated under Order XXII Rule 5 of the Code, so also the proviso to Rule 5 of Order XXII of the Code, and decide the application about the person who would represent as the legal heir of deceased Annapurnabai. The Court shall decide the said applications expeditiously.

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Rule is accordingly made absolute in above terms. No costs.

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[ S.V. GANGAPURWALA,J. ]

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KNP/W.P. 3354.2012 - [ J ]

Annapurna @ Dharmabia W/O Chintarajaiah (Died) Lrs Harishankar Pandharinath Mukkawar and Anr. v. Papya Chintarajeshwar and Ors.

Case brief

What is this about?

What did the court decide?

Annapurna @ Dharmabia W/O Chintarajaiah (Died) Lrs Harishankar Pandharinath Mukkawar and Anr. v. Papya Chintarajeshwar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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