The Dean and Director Vs M/S. Detectwell and Security Services

M/S. DETECTWELL AND SECURITY SERVICES NO.166/236, BHANDADUR VILLAGE BIDADI - 562 100, BIDADI HOBLI RAMANAGARA DISTRICT AND ALSO HAVING BRANCH AT NO 234, 8TH MAIN, 9TH BLOCK NAGARABHAVI, 2ND STAGE KALYANANAGAR, BENGALURU - 560 072 BY ITS PROPRIETOR EDWAD CLEMNET (NOW DECEASED) NOW PROPRIETRIX SMT CECILIA VASANTHI F.

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…RESPONDENT

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE COSDE FO CIVIL PROCEDURE PRAYING TO CALL FOR RELEVANT SET ASIDE THE ORDER DATED 09.01.2024 PASSED ON IA NO. II IN OS NO. 272/2020 ON THE FILE OF THE VI ADDL. SENIOR CIVIL JUDGE AND JMFC MYSORE VIDE ANNEXURE-E.

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NC: 2025:KHC:41394 WP No. 8334 of 2024

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HC-KAR

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

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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The defendants are before this Court under Articles

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226 & 227 of the Constitution of India with a prayer to set aside the order dated 09.01.2024 passed on IA No.II in OS No.272 of 2020 by the Court of VI Addl. Senior Civil Judge and JMFC, Mysuru vide Annexure-E.

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Heard the learned counsel for the petitioner.

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O.S.No.272 of 2020 was filed by a firm known as

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'M/s Detectwell & Security Services' represented by its proprietor Mr. Edward Clement against the petitioners herein for recovery of money. During the pendency of the said suit, Mr. Edward Clement who was the proprietor of the plaintiff-firm had died and therefore his widow Mrs. Cecilia Vasanthi F had filed an application under Order XXII Rule 10 R/w Section 151 of CPC with a prayer to permit her to represent the plaintifffirm as its proprietor and prosecute the suit. The said application was opposed by the defendants by filing objections. The Trial Court vide the order impugned has allowed I.A.No.II

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HC-KAR

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filed under Order XXII Rule 10 R/w Section 151 of CPC. Being aggrieved by the same, the petitioners-defendants are before this Court.

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Learned counsel for the petitioners having reiterated the grounds urged in the petition submits that no material was produced before the Trial Court to show that widow of deceased Mr. Edward Clement had become the proprietor of the plaintiff-firm, after the death of her husband. Since there was a delay in filing application, necessary application to condone the delay was not filed. Therefore, the Trial Court was not justified in allowing the application.

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O.S.No.272 of 2020 was filed by a proprietorship

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firm against the petitioners herein for recovery of money. The plaintiff-firm was originally represented by its proprietor Mr. Edward Clement. In the application which was filed under Order XXII Rule 10 of CPC which is supported by the affidavit of the widow of deceased Mr. Edward Clement, it is stated that Mr. Edward Clement has died on 27.09.2020 leaving behind his wife and children, who are the only legal representatives to succeed to his estate. It is also stated that his wife has been registered as proprietor of the firm in concerned records and

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HC-KAR

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the right, title and interest of the plaintiff firm has devolved on her. In the objections filed to the said application, the said submission made by wife of deceased Mr. Edward Clement has not been controverted and on the other hand only application raised is that the application was not filed within 90 days and therefore application was liable to be dismissed.

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Order XXII Rule 10 of CPC provides the procedure in case of assignment before final order is passed in the suit. A reading of the said provision of law would go to show that, in a case of assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.

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In the case on hand the widow of deceased Mr. Edward Clement who was the proprietor of the plaintiff firm, has stated in her affidavit that interest in the plaintiff firm has devolved on her after the death of her husband and considering the said aspect of the matter, the Trial Court has allowed the application.

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