The High Court dismissed a writ petition seeking to quash orders allowing a cooperative bank to withdraw a duplicate petition and amend a filing containing a clerical mistake regarding parties, holding no prejudice was caused.
The writ petition praying for quashing of the impugned orders was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF FEBRUARY, 2013
BEFORE
THE HON’BLE MR. JUSTICE H.N. NAGAMOHAN DAS
WRIT PETITION No. 23878/2011 (CS-RES)
BETWEEN :
ALL ARE R/OF JALAHALLI CAMP (GANDHINAGAR) POST, SINDHANUR TALUK, RAICHUR DISTRICT.
… PETITIONERS
(By Sri.K.RAGHAVENDRA RAO, ADV.)
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AND :
… RESPONDENTS
(By Sri.K.A.ARIGA, AGA FOR R1 & 2 Sri G.CHANDRASHEKARAIAH, ADV,. FOR R3/C)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA WITH A PRAYER TO QUASH THE IMPUGNED ORDER FOUND AT ANNEXURE-Q DATED 12.03.2010 PASSED BY THE R1 AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN B GROUP THE COURT PASSED THE FOLLOWING;
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O R D E R
In this writ petition the petitioner has prayed for a writ in the nature of certiorari to quash the order dated 12.03.2010 – Annexure Q and the order dated 02.04.2011 – Annexure S passed by respondent No. 1.
Karnataka Souharda Sahakari Act, 1997. One Mr. M. Ranga Rao borrowed loan from respondent No. 3 Bank and committed default in payment of loan. Therefore respondent No. 3 Bank initiated proceedings before respondent No. 1 as per Annexure A dated 30.05.2007. Subsequently in the year 2008 respondent No. 3 Bank filed similar petition before respondent No. 1. Thus two petitions were pending. Respondent No. 1 transferred the first petition as per Annexure A to respondent No. 2 to hold an enquiry in accordance with law. Before respondent No. 2 certain proceedings had taken place. Finally respondent No. 3 society filed a memo dated
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20.02.2010 stating that they will not press the second petition filed in the year 2008 and they may be permitted to proceed with the first petition as per Annexure A filed in the year 2007. Under the impugned order Annexure Q respondent No. 1 allowed the memo filed by respondent No. 3 permitting them to withdraw the second petition filed in the year 2008 and permitted them to proceed with the first petition filed in the year 2007. Respondent No. 3 filed an application before respondent No.1 for amendment of the first petition filed in the year 2007. The proposed amendment is to correct certain mistakes in the cause title to the petition and consequent corrections in the facts stated in the petition and also in the prayer column. Under the impugned order at Annexure S respondent No. 1 allowed the amendment application filed by respondent No. 3. Petitioners being aggrieved by the impugned orders at Annexure Q and S passed by respondent No. 1 are before this Court.
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relying on a judgment of this Court in the case of C. Muthu Vs. Bharat Match Works, Shivakasi, 1963 (2) My.L.J. 341 contends that the petition filed by respondent No. 3 was against a dead person and therefore the question of substitution or amendment or impleading will not arise. The petition filed against a dead person is void-abinitio. On this ground it is contended that the impugned orders are liable to be set aside. I decline to accept this contention of the learned counsel for the petitioners.
Annexure A is dated 30.05.2007. The second petition was filed for the same relief in the year 2008. On realizing that there is a mistake on their part respondent No. 3 filed a memo requesting respondent No.1 as per Annexure N to permit them to withdraw the second petition filed in the year 2008 and to proceed with the first petition filed in the year 2007. Under the impugned order at Annexure Q respondent No. 1 permitted respondent No. 3 to withdraw the second
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petition and to proceed with the first petition. When respondent No.
3 realised their mistake in filing the second petition they filed a memo to withdraw the same. This has not resulted in any prejudice to the petitioners. There is no legal impediment for respondent No.3 to withdraw the second petition filed by them for the same relief. In the circumstances the impugned order at Annexure Q is in accordance with law and I find no justifiable ground to interfere with the same.
year 2007 specifies that it was filed against 5 persons. Respondent No. 1 in Annexure-A M.Ranga Rao who is none other than the husband of petitioner No. 1 and father of petitioner Nos. 2 and 3. Even the petitioner Nos. 1 to 3 herein are arrayed as respondent Nos. 2 to 4 in the petition filed in the year 2007. While describing the status of respondent Nos.2 to 4 it is not stated that they are the legal representatives of respondent No.1 in Annexure A. Against the name of M. Ranga Rao it is specifically stated that he is deceased. By
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mistake it was not mentioned that respondent Nos. 2 to 4 therein are the legal representatives of deceased respondent No. 1. Now by way of amendment respondent No. 3 wants to correct this mistake. By considering the facts and circumstances of the case respondent No. 1 rightly allowed the amendment application filed by respondent No. 3. Consequential amendment in the body of the petition and prayer column are also in accordance with law. The judgment relied on by the learned counsel for the petitioners in C. Muthu’s case has no application to the facts on hand. Even otherwise in C. Muthu’s case it is specifically held as under:
“A careful review of the decisions of the several High Courts relating to substitution of a defendant in a suit in place of the original defendant makes it clear – (1) that no such substitution can be permitted in a case where there was a sole defendant, (2) where there are more defendants than one and one of them was dead when the suit was filed the Courts have held that the legal representatives of the deceased defendant can be brought on record subject to any question of limitation that may be raised by the legal representatives of the
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deceased person who were brought on record as the suit had been validly presented in so far as the living defendants are concerned, and (3) where an appeal is filed against a person who was dead on the date of the presentation of the memorandum of appeal, the Courts have held that the appellant can be permitted to bring the legal representatives of the dead person on record. In other words, the Courts have held that substitution is permissible. The principle on the basis of which the Courts have taken this view is that an appeal is a continuation of the original proceedings and as the suit had been validly instituted and the defendant died subsequently, an application to bring his legal representatives under Order XXII Rule 4 is maintainable and the legal representatives can be brought on record. But in cases where there was a sole defendant and he was dead before the suit was instituted all the High Courts have held that such a suit is a nullity and no application for amendment of the plaint by deleting the name of the original defendant and substituting another person in his place, can be permitted.”
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In the circumstances and for the reasons stated above, the writ petition is hereby dismissed.
Sd/JUDGE.
LRS.
2 issues framed by the court
Whether a petition filed against a deceased person is void ab initio and cannot be amended to substitute legal representatives.
Whether the Registrar of Co-operative Societies rightly permitted the withdrawal of a duplicate petition and the amendment of a petition filed against multiple parties including the deceased.
Colour shows how this judgement treated each authority
C. Muthu Vs. Bharat Match WorksDistinguished¶18
C. Muthu Vs. Bharat Match Works, Shivakasi, 1963 (2) My.L.J. 341
3 provisions across 2 enactments
Smt Pushpavathi W/o M.Rangarao
M.Rambabu S/o M.Rangarao
M.Srinivas S/o M.Rangarao
The Registrar of Co-Operative Societies
Sri Lakshmi Venkateshwara Southardha Pattina Sahakari Niyamitha
H.N. Nagamohan Das
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
