IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11th DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NOs. 49099-101 OF 2017 (GM-CPC) BETWEEN:
1. SRI N V GOPINATH, AGED ABOUT 70 YEARS S/O NAMA VISHWANATHIAH 2. SRI N.G.KARTHIK AGED ABOUT 38 YEARS S/O N.V.GOPINATH BOTH PLAINTIFF NO. 1 AND 2 ARE RESIDENT OF NO. 355, 1ST B MAIN 1ST CROSS, 7TH BLOCK JAYANAGAR, BANGALORE- 560 082 3. SRI N.G.NANDAN AGED ABOUT 35 YEARS S/O N.V.GOPINATH R/A NO. 12/A, GIBBS STREET DANDENONG SOUTH- 3175, AUSTRALIA REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SRI N.V.GOPINATH (PLAINTIFF NO.1) PETITIONERS (BY SRI.G.SRIDHAR, ADV.) AND:
1. SMT LALITHA ADIGA AGED ABOUT 80 YEARS W/O LATE M GOPALAKRISHNA ADIGA R/O NO. 460/A, 6TH CROSS, 7TH BLOCK, (WEST) JAYANAGAR BANGALORE-560 082 2. SRI C V JAYARAM AGED ABOUT 54 YEARS S/O LATE C.K. VENKATACHALAIAH R/O NO. 15/1, RAMA IYENGAR ROAD V.V. PURAM, BANGALORE- 560 004 … RESPONDENTS (BY SRI.PRAKASH M.H., ADV.) - - -
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDER FOR O.S. 8524/2014, DATED: 07.10.2017 PASSED BY THE LEARNED XXVII ADDL. CITY CIVIL JUDGE AT BANGALORE VIDE ANNEX-D1 AND ETC.
THIS PETITION COMING ON FOR ‘ORDERS’ THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri.G.Sridhar, learned counsel for the petitioners. Sri.Prakash M H, learned counsel for caveator/respondent no.2.
2. The petitions are admitted for hearing.
3. With the consent of the parties, same is heard finally.
4. In this petition under Articles 226 and 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 07.10.2017 passed by the Trial Court, by which the application preferred by the petitioner under Order XXII Rule 4(4) of the Civil Procedure Code (hereinafter referred to as the ‘Code’ of short) has been rejected.
5. The facts giving rise to the filing of the petition briefly stated are that the petitioner filed a suit seeking the relief of specific performance of the agreement dated 22.04.2013 on 07.11.2014. However, prior to institution of the suit, the sale deed was executed by Defendant No.1 in favour of Defendant No.2 on 06.03.2014. On 08.06.2015 defendant no.1 entered appearance before the trial Court. Trial Court closed the right of defendant no.1 to file the written statement by its order dated 29.09.2015. Thereafter, on 25.09.2016, 1st defendant expired. Petitioner acquired about the death of 1st respondent on 31.05.2017 and filed an application under Order XXII Rule 4(4) of the Code on 27.06.2017 seeking exemption from substitution of legal representatives of deceased respondent No.1 on the ground that respondent No.1 had failed to file the written statement. Respondent filed a reply. Trial Court by order dated 07.10.2017 rejected the aforesaid application interalia on the ground that same was not filed within a period of 90 days which has been prescribed for substitution of legal representatives of deceased respondent and therefore, suit as against 1st respondent had abated. It is further submitted that application under Order XXII Rule 4(4) of the Code could not be entertained after the suit had abated.
6. Learned counsel for the petitioner by placing reliance on a Division Bench decision of this Court in the case of ‘GURUBASAPPA SIDDAPPA KAMPLI (By …. Vs NAGENDRAPPA VEERABHADRAPPA.. )’ AIR 1984 Kant 1 has submitted that the application would have been filed at any stage of proceeding before delivery of judgment. Therefore, the view taken by the trial Court that such an application ought to have been filed within the period of 90 days has been taken in contravention of the Division Bench of this Court.
7. On the other hand, learned counsel for respondents has supported the order passed by the trial Court.
8. I have considered the submissions made by both parties. I have perused records.
9. Order XXII Rule 4(4) of the Code provides that the Court whenever it thinks fit, may exempt the plaintiff from necessity of substituting the legal representatives of any such defendant who has failed to file written statement or who having filed it, has failed to appear and contest the suit at the hearing. In the instant case, admittedly defendant no.1 had not filed written statement. In view of law laid down by the Division Bench of this Court, it is evident that the application should have been field at any stage before the delivery of judgment. Therefore, the view taken by the trial Court that such an application ought to have been necessarily filed within the period of limitation is in contradiction of the order passed by the Division Bench in the case of Gurubasapa Siddappa Kampli (supra) and therefore, cannot be sustained in the eye of law. It is accordingly quashed and set-aside. In the result, the application filed under Order XXII Rule 4(4) of CPC is allowed.
In the result, the petition is allowed.
Sd/- JUDGE brn