IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF APRIL, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR W.P.NOS.9913-9915/2016 (GM-CPC) BETWEEN:
1. SMT. NARAYANAMMA SINCE DEAD REP. BY HER LEGAL HEIRS 1(a) SRI. THIMMARAYAPPA S/O. LATE CHIKKAPPAIAH, AGED ABOUT 80 YEARS, R/AT CHIKKATUMKUR VILLAGE, VEERAPURA POST, KASABA HOBLI, DODDABALAPURA TALUK, PIN – 561 203 2. SRI. VISHNU MURTHY S/O. LATE CHIKKAPPAIAH, AGED ABOUT 80 YEARS, R/AT CHIKKATUMKUR VILLAGE, VEERAPURA POST, KASABA HOBLI, DODDABALAPURA TALUK, PIN – 561 203 3. SRI. T. KEMPE GOWDA S/O. THIMMARAYAPPA, AGED ABOUT 48 YEARS, R/AT NARANAHALLI VILLAGE, RAMESHWARA POST, DODDABALAPURA HOBLI, DODDABALAPURA TALUK, PIN 561 203 (BY SRI. T. PRAKASH, ADVOCATE) ... PETITIONERS AND:
1. SRI. KAIDHALAPPA S/O. LATE CHANAPPA, AGED ABOUT 62 YEARS, R/AT YERAMACHANAHALLI, KASABA HOBLI, BEGUR POST, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT, PIN 571 432 (DELETED V/O DTD. 26.10.2016) 2. GANGATHAMMAIAH SINCE DEAD REP. BY HER LEGAL HEIRS 2(a) SMT. JAYAMMA W/O. LATE GANGATHAMMAIAH AGED ABOUT 54 YEARS, R/AT YERRAMANCHANALLI, BEGUR POST, KASABA HOBLI, NELAMANGALA TALUK PIN 571 432 2(b) SMT. CHANDRAKALA D/O. LATE GANGATHAMMAIAH AGED ABOUT 32 YEARS, R/AT SANJAYNAGAR, NELAMANGALA, DODDABALAPURA ROAD, DODDABALAPURA TOWN, PIN 561 203 2(c) SMT. GANGALAKSHMI D/O. LATE GANGATHAMMAIAH AGED ABOUT 30 YEARS, R/AT NO.31 DIVISION, ADJACENT TO 4TH CROSS, SHANTHI NAGARA, DODDABALAPURA PIN 561 203 2(d) SMT. RAJAMMA @ RAJESHWARY D/O. LATE GANGATHAMMAIAH W/O. PRKASH, AGED ABOUT 28 YEARS, R/AT YAKASHIPURA, ARALUMALLIGE POST, KASABA HOBLI, DODDABALAPURA TALUK, PIN – 561 203 2(d) SRI. MANJUNATH S/O. LATE GANGATHAMMAIAH, AGED ABOUT 26 YEARS, R/AT YERRAMANCHANALLI, BEGUR POST, KASABA HOBLI, NELAMANGALA TALUK, PIN 571 432 ... RESPONDENTS (R1 DELETED V/O DTD.26.10.2016;
NOTICE TO R2(a), 2(b) & 2(e) HELD SUFFICIENT V/O DTD. 09.08.2016;
NOTICE TO R2(c), 2(d) SERVED – UNREPRESENTED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DTD. 19.02.2015 AT ANNEX-A PASSED BY CIVIL JDUGE (JR. DN.) & JMFC NELAMANGALA BANGALORE RURAL DISTRICT, IN O.S.NO.349/2006 DISMISSING I.A.3 TO 5 FILED BY THE PLAINTIFF / PETITIONERS I.E., I.A.3 FILED UNDER ORDER 22 RULE 4 R/W SEC. 151 OF CPC FOR BRINGING THE LEGAL REPRESENTATIVES OF DEFENDANT NO.2 ON RECORD AND I.A.4 FILED BY THE PLAINTIFF UNDER ORDER 22 RULE 9 R/W SEC. 151 OF CPC FOR SETTING ASIDE THE ABATEMENT OF THE SUIT AGAINST DEFENDANT NO.2 AND I.A.5 FILED UNDER SEC. 5 OF LIMITATION ACT R/W SEC. 151 OF CPC FOR CONDONATION OF DELAY IN FILING APPLICATION FOR BRINGING LRS OF DEFENDANT NO.2 ON RECORD.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Plaintiffs in O.S.No.349/2006 have filed these writ petitions by calling in question order dated 19.02.2015, whereunder trial Court has dismissed the interlocutory applications I.A.Nos.3 to 5, which had been filed by the plaintiffs to bring the LR’s of deceased defendant No.2 on record, to condone the delay in filing the application and to set aside the abatement.
2. As could be seen from the impugned order applications came to be dismissed on account of plaintiffs having not taken steps namely, not paid the process fee to issue notice to proposed LR’s of deceased defendant No.2. Sri. T. Prakash, learned counsel appearing for the petitioners fairly submits that there has been some delay in not taking steps and it was not intentional. This Court had ordered notice to respondents including LR’s of deceased defendant No.2 namely, respondent Nos.2(a) to 2(e). Notice issued to respondent Nos.2(c) and 2(d) is served and they are unrepresented. By order dated 09.08.2016 notice to respondent Nos.2(a), (b) and (e) has been held sufficient.
3. Taking into consideration that suit in question has been filed for partition and separate possession, no prejudice would be caused if proposed LR’s of deceased defendant No.2 are brought on record. In fact, LR’s of defendant No.2 have also not appeared in these petitions and opposed the claim of petitioners. Hence, this Court is of the considered view that order under challenge deserves to be set aside and applications filed by the plaintiffs deserves to be allowed by condoning the delay and setting aside the abatement.
4. Subject to observations made hereinabove, I proceed to pass the following:
ORDER (i) Writ petitions are hereby allowed.
(ii) Order dated 19.02.2015 is hereby set aside. I.A.Nos.3 to 5 are hereby allowed. Plaintiffs are directed to carry out amendment of cause title in the plaint before trial Court within 14 days from today and on such carrying out of the amendment, trial Court shall issue suit summons to the defendants 2(a) to 2(e).
Ordered accordingly.
In view of writ petitions having been disposed of, I.A.No.1/17 for early hearing does not survive for consideration and it stands rejected.
SD/- JUDGE DR