Remanded

Sri Miya Sabi Dead by Lrs v. Smt.Akkayamma

Karnataka HC8 Feb 2022RSA/496/2010

Case brief

AI extract

What is this about?

This Regular Second Appeal challenged a decree passed on a deceased defendant. The High Court held the decree a nullity and remanded the matter to the Trial Court for fresh disposal, allowing both parties to lead evidence within six months.

What did the court decide?

Matter remanded to Trial Court for fresh disposal within six months after allowing legal representatives to appear and lead evidence.

Sri Miya Sabi Dead by Lrs Vs Smt.Akkayamma — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 08^TH DAY OF FEBRUARY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S.KAMAL

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REGULAR SECOND APPEAL No.496 OF 2010 (DEC/INJ)

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BETWEEN:

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SRI MIYA SABI DEAD BY LRS

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SHAHWAR

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S/O LATE MOHAMMED SAB DAUGHTER IN LAW OF MIYA SABI, 52 YEARS.

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SHAMSHEER

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S/O LATE MOHAMMED SAB, GRAND SON OF MIYA SABI

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30 YEARS.

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BOTH ARE RESIDENTS OF NYAMATH BI MOHALLA, KOLAR - 563 101. ...APPELLANTS

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(BY SRI S.A.KHADRI, ADVOCATE)

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AND:

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SMT.AKKAYAMMA

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W/O B.S.GOVINDAPPA 48 YEARS, BYAPPANAHALLI, SUGUTUR HOBLI, KOLAR TALUK - 563 101.

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SMT.KHATHI JABEE W/O MOHAMMED SALEHA GRAND DAUGHTER OF SYED CHAPA SABI, 60 YEARS, SUGUTUR VILLAGE AND HOBLI KOLAR TALUK AND DISTRICT - 563 101. ...RESPONDENTS

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(BY SRI S.VISHWANATH SABARAD, ADVOCATE FOR R1; vide order dated 29.06.2016, appeal against R2 stands dismissed)

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THIS REGULAR SECOND APPEAL FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 23.11.2009 PASSED IN R.A.NO.1/2008 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-I, KOLAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 03.11.2006 PASSED IN O.S.NO.208/1998 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (JR.DN) KOLAR.

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THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The present appeal is filed by the legal representatives of deceased defendant No.1 in O.S.No.208 of 1998. The said suit was filed by the plaintiff/respondent No.1 for the relief of declaration and injunction. The said suit came to be dismissed

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on 25^th July, 2020. Aggrieved by the same, the plaintiff had filed Regular Appeal in R.A.No.146 of 2000.

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During the pendency of the said Regular Appeal No.146 of 2000, original defendant No.1 stated to have passed away, i.e., on 24^th June, 2003 and the legal representatives of the original defendant No.1 were also brought on record. By judgment and order dated 06^th April, 2006, the said Regular Appeal was allowed and the matter was remanded to the Trial Court for fresh consideration. After the remand, the plaintiff has not taken any steps either to inform the Trial Court about the death of the original defendant No.1 or to bring the legal representatives of the deceased original defendant No.1 on record and thus in their absence, the matter was continued and further evidence was led in before the Trial Court. The matter was heard on behalf of the plaintiff alone and the suit was decreed on 03^rd November, 2006. On learning about the said decree and being aggrieved by the said judgment and decree, the legal representatives of the deceased original defendant No.1 filed Regular Appeal in R.A.No.1 of 2008 specifically

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contending that the judgment and decree dated 03^rd November, 2006 passed in O.S.No.208 of 1998 was without bringing the legal representatives of the deceased original defendant No.1 on record before the Trial Court, and without having heard them in the matter. However, the First Appellate Court by the judgment and order dated 23^rd November, 2009 negated the plea of the appellants and dismissed the appeal and confirmed the judgment and decree dated 03^rd November, 2008 passed by the Trial Court in O.S.No.208 of 1998. Being aggrieved by the same, the legal representatives of the deceased original defendant No.1 are before this Court.

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Heard the learned counsel for the appellants/ defendants and respondent/plaintiff. The appeal is admitted to consider the following substantial question of law, which arise in this matter is:

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"Whether the Trial Court and the First Appellate Court were justified in decreeing the suit despite the death of defendant No.1 and without bringing the legal representatives of the original defendant No.1 on record"?

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Learned counsel for the appellants and respondents

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submit that in view of the aforesaid substantial question of law, and the pendency of the matter, the matter be taken up for hearing and disposed of instantly. Even though the matter is listed for admission, with the consent of the learned counsel for the parties, the matter is taken up for final disposal.

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The aforesaid facts and circumstances with regard to the death of original defendant No.1 on 24^th June, 2003 during pendency of Regular Appeal No.146 of 2000 is not disputed. It is also not disputed that after the remand of the suit, by judgment and order dated 06^th April, 2006 passed in R.A.No.146 of 2000, plaintiff has not taken any steps to amend the causetitle of the plaint by bringing the legal representatives of the deceased defendant No.1 on record. However, further evidence of plaintiff in the matter was recorded, the matter was heard and the suit was decreed in the absence of the defendants/legal representatives. Aggrieved by the same, the legal representatives of the deceased defendant No.1, who arrayed as defendant No.1 and defendant No.2 filed R.A.No.1 of 2008

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specifically contending that they were unaware of the suit and that they were not brought on record and they had no opportunity to present/prosecute their defence in the matter.

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Learned counsel for the respondent/plaintiff submits

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that while remanding the matter, a date was fixed for appearance of the parties. Despite having knowledge of the same, the appellants herein who are the legal representatives of the deceased original defendant No.1 have not taken care to appear and prosecute the matter. However, he fairly submits that there was an error on the part of the plaintiff in not bringing to the notice of the Trial Court regarding the death of defendant No.1 or in taking necessary steps in amending the cause-title of the plaint, bringing the legal representatives of defendant No.1 in the original plaint. He further submits that an opportunity be provided to the parties by remanding the matter to the Trial Court.

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Considering the aforesaid undisputed facts and circumstances in the matter and in view of the settled position of law that a decree against a dead person is a 'nullity' and in the

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interest of justice, for a final and conclusive disposal of the lis pending between the parties, this Court is of the considered view that an opportunity be given to the appellants/legal representatives of deceased original defendant No.1 to come on record and present/prosecute their defence in accordance with law. For this reason, the matter is remanded to the Trial Court.

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The suit is of the year 1998. Considering the pendency of the matter, the Trial Court is requested to dispose of the matter within an outer limit of six months from the date of receipt of certified copy of this order. Since the parties are being represented by the learned counsel, they shall appear before the Court on 25^th February, 2022 without any further notice. Under the peculiar facts and circumstances of the matter, the plaintiff may be permitted to bring the legal representatives of the original defendant No.1 on record, notwithstanding the delay in the matter since the plaintiff had brought the legal representatives of the original defendant No.1 on record in R.A.No.146 of 2000. The Trial Court shall provide an opportunity to the plaintiff as well as to the defendants to

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lead evidence and rebuttal evidence, if any, and thereafter dispose of the suit within the time frame mentioned herein above. The parties shall co-operate in disposal of the suit in an expeditious manner without seeking any un-necessary adjournments in the matter. The Registry to send the records forthwith. Accordingly, the appeal is disposed of.

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Sd/JUDGE

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Sri Miya Sabi Dead by Lrs v. Smt.Akkayamma

Case brief

What is this about?

What did the court decide?

Sri Miya Sabi Dead by Lrs v. Smt.Akkayamma

Case brief

What is this about?

What did the court decide?

What the court decided

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