Dismissed

Sri G Dharmalingam v. Sri R Sekar

Karnataka HC23 Oct 2021CRP/44/2021

Case brief

AI extract

What is this about?

The High Court dismissed the civil revision challenging the rejection of an application to dismiss the suit as abated. It held the suit did not abate as the deceased was represented by a brother. The petitioners were allowed to file a written statement with heavy costs and directed to participate in the trial without delay.

What did the court decide?

Petition dismissed. Suit recalled; defendants permitted to file written statement by 30.10.2021 upon payment of Rs.25,000 to plaintiffs.

Sri G Dharmalingam Vs Sri R Sekar — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF OCTOBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE R.NATARAJ

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CIVIL REVISION PETITION No.44/2021 (IO)

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BETWEEN

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SRI.G.DHARMALINGAM S/O LATE SRI.GURUSWAMY, SMT.KRISHNAVENI AMMAL, AGED ABOUT 75 YEARS

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SMT.D.LAKSHMI W/O SHRI.DHARMALINGAM AGED ABOUT 70 YEARS,

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MS.SHANMUGAPRIYA D/O SHRI. DHARMALINGAM AGED ABOUT 38 YEARS,

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ALL ARE R/A: NO.268, 5TH MAIN, 4TH CROSS, VIVEKNAGAR, BENGALURU-560047

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... PETITIONERS

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[BY SRI. D.R.RAVISHANKAR, ADVOCATE]

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AND

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SRI.R.SEKAR, S/O LATE S.V.RAMAIYAN AND SMT. R. VEDAVALLI, R/AT : NO.1/7, 86 NEIKUNNAM VILLAGE,

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PALLIYUR POST, SALIYAMANGALAM VIA, PAPANASAM TALU, THANJVUR DISTRICT, TAMIL NADU STATE-613504.

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MS. KALAVATHI D/O. LATE SRI. GURUSWAMY AND LATE SMT.KRISHNAVENI AMMAL, R/AT NO.268, 5TH MAIN, 4TH CROSS, VIVEKNAGAR, BENGALURU-560047.

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... RESPONDENTS

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(BY SRI.ANINDITA CHAKRABORTY, ADVOCATE FOR R1, V/O DATED 16.03.2021 R2 DELETED)

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THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC., AGAINST THE ORDER DATED 10.02.2021 PASSED ON IA.NO.2/20 IN O.S.NO.25184/2016 ON THE FILE OF THE 74TH ADDITITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL, BENGALURU, DISMISSING THE I.A.NO.2/2020 FILED UNDER ORDER 22 RULE 4 OF CPC TO DISMISS THE SUIT AS ABATED. THIS CIVIL REVISION PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This Revision Petition is filed by the

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petitioners/defendants challenging the correctness of the order dated 10.02.2021 passed by the LXXIV Additional City Civil and Sessions Judge, Mayohall Unit, Bengaluru (henceforth referred as 'Trial Court')

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by which the trial Court rejected an application filed by the petitioners under Order XXII Rule 4 of the Code of Civil Procedure (for short 'of CPC').

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A suit in O.S.No.25184/2016 was filed by the respondent/plaintiff for declaration that he is the absolute owner of the suit schedule property and to declare the auction sale dated 04.07.1983 in favour of the mother of defendant No.1 as invalid and also for a declaration that the documents executed by the mother of defendant No.1 are illegal and to hand

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over possession of the suit property to the respondent No.1/plaintiff and for consequential injunction.

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During the course of the suit, defendant Nos.1 to 3 filed a memo on 02.04.2016 intimating the Trial Court about the death of the defendant No.4 and submitted that the defendant No.4 had not left behind any legal heirs. The Trial Court had held that the suit against the deceased defendant No.4 had

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abated, as no steps were taken to bring the legal representatives.

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On 02.04.2016, the defendant Nos.1 to 3 filed an application under Order VII Rule 11(a) & (d) of CPC for rejection of the plaint on the ground that there was no cause of action for the suit. The said application was rejected by the Trial Court on 28.10.2017. The Trial Court recorded the examination-in-chief of P.W.1 on 18.02.2019. Though sufficient time was given to the defendants they did not cross-examine P.W.1. Hence, the crossexamination of P.W.1 was taken as nil.

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On 20.04.2019, the defendant Nos.1 to 3 filed applications for reopening of the case and recalling P.W.1 for cross-examination. The said applications were allowed. On 14.06.2019, though P.W.1 was present, the defendants and their counsel were absent and therefore, the cross-examination of P.W.1 was taken as nil. The defendants failed to

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lead evidence and hence, their evidence was taken as nil and the case was posted for arguments.

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On 06.12.2019, the plaintiff filed written arguments and when the case was posted for the arguments by the defendants, they filed an application under Order XXII Rule 4 of CPC to dismiss the suit as abated since the relief sought against the defendants were joint and indivisible. They claimed that since the suit as against defendant No.4 had abated, it invariably should result in abatement against the other defendants. The Trial Court after considering the conduct of the defendants and also the fact that the defendant No.1 was the legal representative of deceased defendant No.4, rejected the application with cost of Rs.1,000/-.

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Being aggrieved by the aforesaid order, the present writ petition is filed.

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Learned counsel for the petitioners/defendant Nos.1 to 3 submitted that the Trial Court had passed an order dated 02.04.2016 that the suit against the deceased defendant No.4 had abated and since the relief sought for in the suit was joint and indivisible, the abatement of the suit as against deceased defendant No.4 ought to have resulted in the abatement of suit in its entirety.

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Per contra, the learned counsel for the respondents/plaintiff submitted that the defendant No.1 is the brother of the deceased defendant No.4 and therefore, the suit did not abate but the estate of deceased defendant No.4 was duly represented. He also contended that the defendants were unduly protracting the litigation by filing frivolous applications.

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I have considered the submissions of the learned counsel for the parties.

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When once the Court was informed that one of the defendants had expired and that he/she did not leave any legal representatives, it was incumbent upon the Trial Court to have taken necessary steps as provided under Order XXII Rule 4A of CPC and therefore, the order of the Trial Court dated 02.04.2016 holding that the suit against the defendant No.4 had abated does not stand to reason.

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Notwithstanding that, since the defendant No.1 is

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none other than the brother of the deceased defendant No.4, the suit against the defendant No.4 could not abate. Therefore, the suit against the other defendants did not abate. The Trial Court rightly rejected the application filed by the defendant Nos.1 to 3. There is no merit in this writ petition and the same is dismissed .

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At this stage, the learned counsel for the petitioners/defendant Nos.1 to 3 submitted that due

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to these interlocutory applications, the written statement could not be filed and they could not participate in the trial and therefore, sought for an opportunity to participate in the proceedings in the suit.

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It is seen that the defendants have deliberately delayed the adjudication of the suit on one or the other ground. However, since the suit is filed for declaratory reliefs which have vast civil consequences, it is imperative that the defendant Nos.1 to 3 are provided with an opportunity to contest the suit on merits. However, this cannot be done without compensating the plaintiffs for the delay caused in the suit.

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In that view of the matter, the stage of the suit is recalled and the defendant Nos.1 to 3 are permitted to file their written statement subject to payment of cost of Rs.25,000/- payable by the defendant Nos.1 to 3 to the plaintiffs before the Trial Court on the

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next date of hearing. The defendant Nos.1 to 3 shall file their written statement by 30.10.2021.

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The Trial Court is requested to frame issues and record the evidence of plaintiffs. The defendant Nos.1 to 3 shall cross-examine the witness of the plaintiff/respondent No.1 preferably on the same day or on the next day without seeking any further adjournment.

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The defendant Nos.1 to 3 shall also adduce their evidence if any, on the date fixed by the Trial Court without seeking any further adjournment. The Trial Court may thereafter decide the suit on merits within a period of three months from the date of conclusion of the trial.

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Sd/JUDGE

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GJM

Sri G Dharmalingam v. Sri R Sekar

Case brief

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Sri G Dharmalingam v. Sri R Sekar

Case brief

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