Smt Shantha Vs Sathish Rai

(BY SRI. SANATH KUMAR SHETTY K., ADV. FOR R45, SRI. DHANANJAY KUMAR, ADV. FOR R47 TO R53; VIDE ORDER DATED 27/06/2018 NOTICE TO R1 TO R37 ARE DISPENSED WITH, VIDE ORDER DATED 12/12/2022 NOTICE TO R38 & R40, HELD SUFFICIENT, R41, R42, R43, R44 & R46 SERVED AND UNREPRESENTED.)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 6^TH MARCH 2018, PASSED BY THE HON'BLE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, BELTHANGADY IN I.A.NO.V/17 OF REGULAR APPEAL NO.6/2014 AS PER ANNEXURE-A AND ETC.

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THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL

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ORAL ORDER

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Defendant No.23 in a suit in O.S.No.327/2001 on the file of Civil Judge and JMFC, Belthangady, D.K. ('Trial Court' for short) is before this Court being aggrieved by the order dated 06.03.2018 passed an her application filed under Order I Rule 10 of Code of Civil Procedure seeking to transpose herself as appellant in R.A. No.6/2014 pending consideration on the file of Prl. Sr.Civil Judge and JMFC, Belthangady, D.K. ('First Appellate Court' for short) arising out of the judgment and decree passed in the said O.S.No.327/2001.

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Brief facts leading to filing of the present petition are that one Harish Rai, the plaintiff filed the above suit in O.S.No.327/2001 against defendant Nos.1 to 43 for relief of partition and separate possession of suit schedule properties contending inter-alia that the suit schedule properties had been allotted to one Smt. Rukmini under a partition dated 09.04.1954. That the said Rukmini had passed away leaving behind 5 children namely, Chandra Shetty, Appi, Lalitha, Prema and Vasantha Shetty. The plaintiffs and defendant Nos.1 to 30 are the descendants of said Rukmini.

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It is further contended that defendant Nos.31 to 43

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are the strangers to the family of the plaintiff and defendant Nos.1 to 30 having no share, right title in the property, were claimed share in the suit property. As such, the plaintiff has filed above suit for partition.

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The Trial Court on merits while answering issue Nos.4, 5 and 7, it held that the plaintiff had failed to prove that the suit schedule property have been allotted to said Rukmini in partition dated 09.04.1954. It further held that the plaintiff had failed to prove that he and defendant Nos.1 to 30 belong to the family of said Rukmini. Based on these two findings, the Trial Court dismissed the suit.

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As against the said judgment and decree dated 18.04.2012, the plaintiffs preferred appeal in R.A.No.6/2014. Plaintiff thereafter passed away on 29.11.2015. Things stood thus, the mother of the plaintiff who was defendant No.1 in the said suit, made application on 4.6.2016 seeking to transpose herself as appellant. It is submitted that even before the said application could be considered by the Trial Court, she passed away. Thereafter, the petitioner herein who was defendant

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No.23 in the said suit filed interlocutory application under Order I Rule 10(2) read with Order XXIII Rule 1(A) and 151 of Code of Civil Procedure, (IA No.V) seeking order to transpose herself as appellant in the said regular appeal. The said application came to be rejected by the First Appellate Court by the impugned order which is impugned in this writ petition.

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Learned counsel for the petitioner reiterating the averments and grounds urged, relying upon the judgment of the Hon'ble Apex Court in the case of Bhagwan Swaroop and

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Ors. Vs. Mool Chand and Ors. reported in (1983)2 SCC 132, and also relying upon the order dated 16.12.2010 passed in WP No.37913/2010 by the Co-ordinate Bench of this Court, submits that the technicalities of filing application should yield to the requirement of disposal of the matter on merits. In that, merely because there is delay in filing the application by the petitioner/defendant No.23 to come on record, shall not be the reason for denying requirement of dispensation of justice. Referring to the impugned order, he further submits that the very premise on which the First Appellate Court has proceeded is erroneous in that the petitioner never contended herself to be the daughter of defendant No.1. He submits no doubt that

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plaintiff and defendant Nos.1 to 30 belongs to the family of Rukmini, this aspect of the matter has not been considered by the First Appellate Court. The First Appellate Court without appreciating the factual aspect of the matter, has merely referred to the erroneous reasoning of the Trial Court to hold that the plaintiff belong to different branch and the defendants belong to different branch. As such, it has been wrongly held that the defendant No.23 who is seeking to transpose herself as appellant cannot make this application. He submits that these reasons on merits also are unsustainable. Hence, seeks allowing of the petition.

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In response, learned counsel appearing on behalf of the contesting defendant 35 who is respondent No.45 in this petition, submits that the appellants' suit abated upon expiry of 90 days period from the date of death of the appellant on 29.11.2015. Since the abatement is a process which takes place by operation of law, unless the said order is reversed/set aside, no one can seek to come on record and continue to the proceedings. He submits that non- compliance of requirement of Order XXII cannot be cured by filing application under Order

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I Rule 10 of Code of Civil Procedure. He relied upon the

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judgment of the Hon'ble Apex Court in the case of Mahendra Saree Emporium vs. G.V. Srinivasa Murthy, reported in

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AIR 2004 SC 4289 in support of his submission.

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He further submits that since the appeal having been abated, if the petitioner herein is permitted to come on record who was otherwise defendant No.23 in the suit, it would amount to reviving an otherwise time barred appeal, which is impermissible under law. He refers to Section 21 of the Limitation Act, 1963 in support of his submission. Thus, seeks for dismissal of the petition.

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Heard and perused the records.

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Facts in the judgment relied upon by learned

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counsel for petitioner involved in the case of Bhagwan Swaroop and others ( supra), are that the respondent therein has passed away and his legal representatives sought to come on record who are not the parties to the proceedings. Though there was divergence of opinion in the said judgment by the Hon'ble Apex Court, considering the nature of the dispute being one for partition and preliminary decree having been passed

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therein, the Apex Court had found it appropriate to allow the proceedings to continue and to be taken to logical conclusion.

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In the instant case, the plaintiff who filed the suit having lost on merits, had filed the appeal in RA No.6/2014 and passed away on 29.11.2015. There was no efforts made to bring legal representatives of the original plaintiff/appellant on record or any substitution made, until an application dated 04.06.2016 came to be filed by his mother who was defendant No.1, which itself was a belated application. Even the said application did not see the light of the day, before which, mother of the appellant said to have passed away. Thereafter, the present petitioner who was defendant No.23 came up with the present application filed under Order I Rule 10 of Code of Civil Procedure, on 16.5.2017 to seek herself to transpose as appellant. It is not that the petitioner/defendant No.23 was not aware of the proceedings or the death of the appellant. The appeal having been abated unless reversed in the manner known to law, as rightly pointed out by learned counsel for respondent cannot sought to be revived as done in the case at hand.

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12. It is relevant at this juncture to refer to paragraph

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No.13 of the Judgment of Apex Court in the case of Mahendra Saree Emporium (supra) , which is extracted hereunder:

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"13. Abatement kills the right to sue and has the effect of unceremoniously terminating the pending legal proceedings without adjudication on merits. It has to be strictly construed and applied only to such cases to which its applicability is undoubtedly attracted. Excepting where an otherwise legislative intention is expressly or by necessary implication deducible, a provision for abatement of pending proceedings shall abate only such proceedings as were pending on that day and at that stage and not the original proceedings which had already stood concluded but were reopened by a superior forum for the purpose of examining legality or propriety thereof."

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The aforesaid principles of law would apply to this case like in any other, inasmuch as the said provision of law would operate on its own. Therefore no error or irregularity can be found in the impugned order.

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Having said thus, the question that remains for consideration is that the present suit being one for partition, whether the rights of the parties to their share in the immovable properties can be allowed to remain undecided on

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the aforesaid technicalities of abatement by operation of law for all time to come. Parties having been litigating the matter, issues not having been finally settled in the matter in the manner known to law, appeal having been abated and even as observed by the Apex Court in the case of BHAGWAN SWAROOP (supra), the hyper technical approach shall not be adopted to prevent the miscarriage of justice.

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In terms of the above settled principles of law and

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under the aforesaid factual position of the matter, this Court is of the considered view that liberty be reserved to the petitioner/defendant No.23 to seek redressal of grievance and avail such other remedy in the manner known to law, if so advised. If such grievance is sought to be redressed, pendency of this proceedings shall be taken into consideration for the purpose of consideration of issue on limitation.

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With the above observation, writ petition is disposed of .

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Sd/(M.G.S. KAMAL) JUDGE

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SSD, List No.: 1 Sl No.: 3

Smt Shantha v. Sathish Rai

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