Dismissed

NavatheHemalatha v. K.Rukmini and 6others

Telangana HC24 Jan 2024CRP/610/2023

Case brief

AI extract

What is this about?

The High Court of Telangana dismissed a civil revision petition filed by a defendant challenging an order allowing certain legal heirs to be impleaded in a title suit. The bench upheld the trial court's application of Order 1 Rule 10 CPC over Order 22 Rule 3 CPC, noting the suit did not abate due to a surviving plaintiff.

What did the court decide?

Civil revision petition No. 610 of 2023 was dismissed without costs; no order on other pending miscellaneous petitions.

NavatheHemalatha Vs K.Rukmini and 6others — Property and Title | Telangana HC (2024)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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WEDNESDAY, THE TWENTY FOURTH DAY OF JANUARY TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SMT JUSTICE K. SUJANA

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CIVIL REVISION PETITION NO: 610 OF 2023

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Petition under Aiicle 227 of the Constitution of lndia, against the order dated 18-01-2023 in l.A. No. 492 of 2022 in OS No. 196 ot 2O14 on the file of the Senior Civil Judge, At. Nizamabad

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Between:

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Smt. NavatheHemalatha, wlo Thulsidas, aged about 53 years, OccHousewife, R/o 6-15-117/1, Pavannaqar, Gurbabadil road, Dubba, Nizamabad

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...Petitioner/Respondent No.2l2"d Defendant

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AND

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1 . K.Rukmini, w/o. KLN Charyulu, aged about 68^years, Occ- Business, r/o 1006-546, Bramapuri lnside ChakramGudi, Nizamabad District

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Nagaraju, s/o KLN Charyulu, aged about 43 years, occ- Govt. service, r/o^'10- 06-546, Bramapuri inside ChakramGudi, Nizamabad District

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...RespondenURespondenUPlainitff

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SLN Chari, s/o Laxmi Narayan Chari, aged about 68^years, occ- B.usiness, r/o 1O-09-lO4ll,ShivajiNagar,Nizamabad ....RespondenUl"'Defendant

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K Srinivasa Murthy, s/o KLN Charyulu, aged about 53^years, oc-. Private Service, r/o USA through GPA holder lvlrNagaraju s/o KLN Charyulu, aged about. 43^years, occ. Govt service, r/o 10-06-546, Brahmapuri inside ChakramGudil, Nizamabad.

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K. Narsimha Murthy, s/o KLN Charyulu, aged about 51^years, occ- Private Service, r/o USA through GPA holder MrNagaraju s/o KLN Charyulu, aged about. 43^years, occ. Govt service, r/o 10-06-546, Brahmapuri inside ChakramGudil, Nizamabd.

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K. Chakra Pani, s/o KLN Charyulu, aged about.49 years, occ- Private Service, r/o USA through GPA holder MrNagaraju s/o KLN Charyulu, aged about. 43^years, occ. Govt service, r/o 10-06-546, Brahmapuri inside ChakramGudil, Nizamabd.

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K. Raghuram, s/o KLN Charyulu, aged about. 42 years, occ- Private service, r/o USA through GPA holder MrNagaraju s/o KLN Charyulu, aged about. 43

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years, occ- Govt service, r/o 10-06-546, Brahmapuri inside ChakramGudil, Nizamabd

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...Respondents/Proposed implead petitioners

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lA NO: 1 OF 2023

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Petition under Section 151 CPC praying that in the circumslances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings in suit bearing OS No: 196 of 2014 on the file of senior Civil Judge, Nizamabad.

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Counsel for the Petitioner: Sri. T.V. KALYAN SINGH

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Counsel for the Respondent No.2: Sri. M. NARASIMLU for NOMC)S VISTAS THE LAWYERS

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The Court made the following: ORDER

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-/ /t /

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THE HONOURABLE SMT JUSTICE K. SUJANA

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CIVIL REVISION PETITION No.61O OF 2023

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ORDER:

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The presenl revision petition is liled aggrieved by the order dated 18.O1.2023 in I.A.No.492 of 2022 in O.S.No.196 of 2014 on the Iile ol the Senior Civil Judge, at Nizamabad.

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The brief facts of the case are that the respondent Nos. 1 and 2lplaiotiff Nos.l and 2 herein filed O.S.No. 196 of 2014 under Section 26, read with Order VII, Rules 1 to 3 of the Civil Procedure Code (for short 'C.P.C') seeking declaration and cancellation of registered sale deed and perpetual injunction. In the said suit, the respondent Nos.4 to 7 herein filed I.A.No.492 of 2022 under Order 1, Rule 10, read with Section 151 of C.P.C., seeking to implead them as plaintiff Nos.3 to 6 in the suit.

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The respondent Nos.4 to 7 herein filed the said I.A., stating that their mother - plaintiff No. 1 Iiled the said suit and for declaration of title and perpetual injunction and mentioned the names of proposed plaintiffs in the suit stating that they

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/*--

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SKS,J C R. P.No.6l O of2023

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reside in the United States of America and also to declare them as title holders of the suit schedule property but during the pendency o[ the said suit, the mother - plaintifl' No. I expired leaving behind them as her legal heirs and snccessors. On obtaining legal advice they were informed that they need to come on record in the said suit as plaintiffs, as such, a Special Power of Attorney was executed in favor of plaintiff No.2 and the said I.A., was filed.

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4 . It was contended that the petitioners in the said I.A., are sons of KLN Charyulu and plaintiff NO.l, as such, they are necessary parties to the suit. Further, as the suit was filed in the urgency a.pprehending that the defendant No.2 may forcibly occupy the suit plot, the suit was filed mentioning the names of proposed parties but after the death of plaintiff NO. I when they sought legal advice, they were informed to come on record and get themselves impleaded as plaintiff Nos.3 to 6 in the suit.

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In the said I.A., on behalf of respondents a counter affidavit was filed opposing the implead petition stating that the said petition is filed intentionally to mislead the Court, drag the

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SKS,J C.R.P.No.61O of 2023

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matter and to cover the lacunas. As such, prayed to dismiss the implead petiLion.

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After hearing both sides and on considering the material placed on record, the trial Court allowed I.A.No.492 of 2022 uide order dated 18.O1.2023. Aggrieved thereby, this revision petition is filed by defendant No.2.

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Heard Sri T.V.Kalyan Singh, learned counsel for petitioners, and Sri M.Narasimulu, learned counsel for respondents.

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B. Learned counsel for petitioners submitted that the trial Court failed to consider the fact that as respondent Nos.4 to 7 herein claim to be the legal heirs of plaintiff No. 1, they can come on record in the suit as plaintiff Nos.3 to 6 only under Order XXII Rule 3 of C.P.C., and not under Order I, Rule 10 of C.P.C. Further, the trial Court ought to have considered that the death of plaintiff No. 1 was not reported before the trial Court and in the implead petition also nowhere the date of death of plaintiff No.l is mentioned. He specifically contended that the suit is abated after the death of plaintiff No.1 and unless the

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SI(S,J C.R.P.No.6l O of 2023

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abatement is set aside under Order XXII Rule 9 of C.P.C., the matter cannot be proceeded further

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In addition to the above, learned counsel for petitioner also contended that the scope of Order I Rule 10 of C.P.C., and Order XXII Rule 3 of C.P.C., is totally different and the legal heirs of deceased plaintiff No.1 cannot come on record invoking Order I Rule 10 of C.P.C., when there is a specihc prtrvision of law under Order XXII Rule 3 of C.P.C. Further, the trial Court erred in concluding that respondent Nos.4 to 7 being sons of plaintiff No.l wtro died during pendency of suit, have equal rights as that of plaintiff NO.2.

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karned counsel for respondents submitted that lhere are no infirmities in rhe order dated 18.01.2O23 and the trial Court has rightly allowed I.A.No.492 of 2022 uide ordt:r dated 18.01.2023.

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1 l. Having regard to the rival submissions made, and on going through th(l record, it is noted that at the time oi hling of suit there were two plaintiffs. Plaintiff No.l is the deceased mother of respondent Nos.4 to 7 herein and plaintiff No.2 is also

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T I

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SKS,J C.R.P.No.610 of 2023

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son of plaintiff No. I and he was on record before the death of plaintiff NO. 1. Therefore, it can be said that even though plaintiff NO.1 died, the suit cannot be abated as plaintiff No.2 is alive, as such, the cause in the suit still survives.

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In addition to above, it is a-lso appropriate to note that Order XXII Rule 2 of C.P.C., says that where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiffs or plaintilf alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to the effect to be made on the record. Similarly, in the present case also the suit cannot be abated at the instance of surviving plaintiff No.2. Therefore, there is no force in the said contention of learned counsel for petitioners.

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i3. However, Order II Rule 3 of C.P.C., comes into picture when only one plaintiff is there and only when the sole plaintiff dies and no legal representatives have come on record, the suit is liable to be abated. In other words, if there is no application filed by the legal representatives of the deceased plaintiff within the time prescribed by law, the suit can be abated.

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SI(S,J C.R.P.No.6l O of 2O23

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in the case on hand, there is a surviving plaintiff who is the brother of respondent Nos.4 to 7 herein who are proposed plaintiff Nos.3 to 6. Therefore, it cannot be said that the suit is abated. Further, the Hon'ble Supreme Court in the^judgment rendered in Banwari Lal Vs. Balbir Singhl observed th.at Order XXII Rule 4 stipulates the manner in uhich the legal representatiues of the plaintiffs or the defendants oughl to be brought on record. The prescibed procedure cannot be ciranmuented bg filing application under Order 1 Rule 10 CPC read Luith SectiorL 151 CPC. Hotueuer, in our uieut, it uould be unjust to non-suit the appetlants on the ground of technicalities. Further, the application filed under Order I Rule 10 CPC was treated as an application filed under Order XXII Rule 3 CPC and the legal representatives were brought on record.

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In view of lhe above, in the present case also it <:annot be said that the application filed under Order I Rule i0^,:f CPC is against the established procedure of law and only an application under Order XXII Rule 3 of CPC applies to the circumstances of the case.

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SKS,J C.R.P.No.6l0 of 2023

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Therefore, this Court is of the view that there are no illegalities in the order dated 1g.01.2023 made in I.A.No.492 of 2022 in O.S.No. 196 of 2Ol4 and the revision petition is liable to be dismissed. Accordingly, the Civil Revision petition is

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dismissed. There shall be no order as to costs.

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As a sequel, miscellaneous petitions pending, if any, shall stand closed.

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SD/. A,V.S.PRASAD ASSISTANT REGISTRAR

//TRUE COPY//

'i.

SECTION OFFICER

To,

The Senior Civil Judge, At. Nizamabad

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One CC to Sri. T.V. KALYAN SINGH, Advocate [OPUC]

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One CC to Sri. M. NARASIMLU for NOMOS VISTAS THE LAWYERS, Advocate [OPUC]

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Two CD Copies

PSR

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HIGH COURT

DATED:24101,t2024

ORDER

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DESr, ck

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CRP.No.610 c>f 2023

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DISMISSING THE CIVIL REVISION PETITION WITHOUT COSTS.

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NavatheHemalatha v. K.Rukmini and 6others

Case brief

What is this about?

What did the court decide?

NavatheHemalatha v. K.Rukmini and 6others

Case brief

What is this about?

What did the court decide?

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