IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MAY 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITION NOs.20634/2014 & 46855/2014 (GM-CPC) BETWEEN 1. SRI ROHAN ATIKARI AGED ABOUT 46 YEARS, S/O. RAMA MOHAN ATIKARI, PRESENTLY R/AT NO.216, NGEF EAST, SADANANDA NAGAR, BENGALURU - 560 038.
2. SRI H.S. PADMARAJ AGED ABOUT 46 YEARS, S/O SANJEEVAPPA, R/AT NO.15, GAYATHRI, HBCS LAYOUT, BASAVESHWARA NAGAR, BENGALURU - 79.
... PETITIONERS (BY SRI H JAYAKARA SHETTY, ADV.) AND:
1. SMT. JAYAMMA SINCE DEAD SMT. PRAMELA, W/O. RAGHUPATHI, AGED ABOUT 37 YEARS, R/AT TALAGATTAPURA VILLAGE, UTTARAHALLI, KANAKAPURA TALUK – 562 117.
2. SRI N. RAMESH, AGED ABOUT 57 YEARS, S/O. NARAYAN DAS, R/AT NO.33, 2ND MIAN ROAD, MALLESHWARAM, BENGALURU - 560 003.
3. SRI VENKATARAMAIAH, AGED ABOUT 58 YEARS, S/O. LATE VENKATACHALAIAH, R/AT HUTTENAHALLI VILLAGE, JALA HOBLI, BENGALURU NORTH TALUK – 560 0013.
... RESPONDENTS (NOTICE TO R1 AND R2 IS HELD SUFFICIENT VIDE ORDER DATED 01.04.2019 R3 IS SERVED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER ANNEX-A DTD.8.1.2014 MADE IN O.S.NO.1598/2006 ON I.A.NOs.10 & 11 BY THE COURT OF SENIOR CIVIL JUDGE & JMFC AT DEVANAHALLI AND KINDLY DISMISS THE APPLICATIONS I.A.NOs.10 & 11 FILED BY THE R-1 ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The first and second defendants in O.S.No.1598/2006 are invoking the writ jurisdiction of this Court assailing the order dated 08.01.2014 made by the learned Senior Civil Judge and JMFC, Devanahalli, whereby, the first respondent’s application in I.A.No.10 filed under Order XXII Rule 3 of Code of Civil Procedure, 1908, has been allowed permitting the first respondent to come on record as the legal representative of the deceased plaintiff. After service of notice the respondents have not chosen to appear.
2. Learned counsel for the petitioners vehemently contends that the impugned order is liable to be set at naught inasmuch as the condition precedent namely holding of a reasonable enquiry has not been complied with and secondly, the Court has passed the order in a very casual manner; there is all possibility of the said order casting it’s influence in adjudging the testament in question. So arguing, he seeks for the allowing of the writ petitions.
3. I have heard the learned counsel for the petitioners. I have also perused the petition papers.
4. The original plaintiff having died, the first respondent has made the application in I.A.No.10 under Order XXII Rule 3 of CPC asserting that the deceased plaintiff has made a bequest by the Will dated 26.09.2011, and she being the surviving sole legatee of the Testator has succeeded to the interest of the estate of the deceased and therefore, she be permitted to come on record as the legal representative of the deceased. The said version of the first respondent was stoutly disputed by the petitioner herein by filing detailed objections.
5. The learned trial Judge banking upon the definition of the ‘legal representative’ under Section 2(11) of the CPC, has prima facie accepted in the version of the first respondent and thereby, allowed the application permitting the first respondent to come on record as the legal representative of the deceased plaintiff. Some enquiry has been undertaken although it is not in detail and depth. However, no prejudice will be caused to the petitioner by the impugned order inasmuch as the learned Judge has specifically stated that the first respondent is permitted to come on record as the “legal heir” of the deceased plaintiff subject to proving the Will in question. This observation takes care of the apprehension expressed by the learned counsel for the petitioners.
6. However, by way of the abundant caution it is hereby made clear that the finding of the Court below as to first respondent being a prima facie legal heir of the deceased plaintiff will not preclude the petitioners herein from leading necessary evidence to rob of the efficacy of the said finding.
7. In the above circumstance these writ petitions are disposed off with the above observation.
Costs made easy.
Sd/- JUDGE nvj