- 1 - ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NO.6912/2014(GM-CPC) BETWEEN 1. SMT VEENA RAO AGED ABOUT 58 YEARS D/O T RATHNAKAR W/O RAGHURAM RAO R/A “GOPIKA” KINNIMULKI, NEAR AUTO LAND GARAGE UDUPI CITY UDUPI TALUK AND DISTRICT-576101 BY GPA HOLDER RAGHURAM RAO 2. SRI MANORANJANI SHETTY AGED ABOUT 49 YEARS W/O DINAKAR SHETTY R/A KUKKIKATTE “SHIVAGIRI HOUSE”
NO.76, BADAGABETTU VILLAGE UDUPI TALUK AND DISTRICT-576101 ... PETITIONERS (BY SRI S VISHWAJITH SHETTY, ADVOCATE) AND 1. SRI PETER VINCENT BARNES AGED ABOUT 59 YEARS S/O VINCENT ANTONY BARNES R/A PERAMPALLI SHIVALLI VILALGE UDUPI TALUK AND DISTRICT-576101 2. SRI MARK VINCENT BARNES AGED ABOUT 57 YEARS S/O VINCENT ANTONY BARNES R/A PERAMPALLI, SHIVALLI VILLAGE UDUPI TALUK AND DISTRICT-576 101 3. SRI MARTHA S LEWEIS AGED ABOUT 53 YEARS S/O VINCENT ANTONY BARNES R/A PERAMPALLI SHIVALLI VILLAGE UDUPI TALUK AND DISTRICT-576 101 4. SRI ABRAHAM VINCENT BARNES AGED ABOUT 49 YEARS S/O VINCENT ANTONY BARNES R/A PERAMPALLI SHIVALLI VILLAGE UDUPI TALUK AND DISTRICT-576 101 5. SMT BRATTA BARNES AGED ABOUT 53 YEARS W/O LATE DANIEL VINCENT BARNES R/A PERAMPALLI SHIVALLI VILLAGE UDUPI TALUK AND DISTRICT-576 101 6. SRI DAVID D BARNES AGED ABOUT 28 YEARS S/O LATE DANIEL VINCENT BARNES R/A PERAMPALLI SHIVALLI VILLAGE UDUPI TALUK AND DISTRICT-576 101 7. SRI DOORAN D BARNES AGED ABOUT 27 YEARS S/O LATE DANIEL VINCENT BARNES R/A PERAMPALLI SHIVALLI VILLAGE UDUPI TALUK AND DISTRICT -576 101 ... RESPONDENTS (R1 TO R7 ARE SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER ANNEXURE-A DATED.15.6.2013 MADE ON I.A.NO.9 IN O.S.NO.137/2006 BY THE COURT OF PRINCIPAL CIVIL JUDGE (SR.DN.), UDUPI.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The plaintiffs in OS.No.137/2006 on the file of Principal Civil Judge (Sr.Dn), Udupi, have come up in this writ petition impugning the order dated 15.6.2013 in rejecting their application in IA.9 under Section 151 of CPC seeking direction to the surviving defendants to furnish the names and address of the legal heirs of 4th defendant, who died on 19.12.2011. The parties herein are referred to by their rank in the trial court.
2. Brief facts leading to this writ petition are as under:
The suit in OS.No.137/2006 is filed by the petitioners herein seeking recovery of a sum of Rs.8,54,534/- with cost and interest from defendants 1 to 8 in the said suit. The plaint averments would indicate that on 23.8.1997 an agreement of sale was executed in favour of plaintiffs by defendants 1 to 6 for themselves and also on behalf of defendants 7 and 8, who were minors at the time of execution of agreement of sale for sale of 66 cents of land bearing Sy.No.252/6A of Shivalli Village, Udupi Taluk for valuable consideration of Rs.6,60,000/-.
3. The plaint averments would further indicate that a sum of Rs.5,00,000/- is paid to defendants on 3 dates i.e., Rs.2,00,000/- on 23.8.1997, Rs.2,50,000/- on 10.3.1998 and Rs.50,000/- on 20.3.1998. Out of that Rs.50,000/- is paid by cheque and the remaining amount by cash. It is stated that the sale transaction did not come through for the reason that the extent of land agreed to be conveyed was not available and the extent available was only 50 cents. It is in this behalf, a supplementary agreement of sale was entered in to between the parties on 16.7.2002. It is seen that subsequently, there are certain disputes which resulted in transaction not coming through. Hence, the suit for recovery of advance amount paid along with interest is filed on 30.11.2006.
4. When the suit in OS.NO.137/2006 was pending consideration, 4th defendant died on 19.12.2011 at Mumbai which fact is informed to the court below by the counsel for defendants on 13.6.2012 by filing a memo, however, particulars of the legal representatives of deceased 4th defendant were not furnished by the counsel. Hence, the plaintiffs filed an application in IA.9 seeking particulars of the legal representatives of deceased 4th defendant, for which objection raised by the defendants is that they are not under an obligation to furnish the said particulars to the plaintiffs. It is also stated that they went on to the extent of denying the memo being filed in reporting death of 4th defendant. On the basis of the objection of defendants, the said application filed by the plaintiffs under Section 151 of CPC is dismissed. Being aggrieved by the said order, the plaintiffs have come up in the present writ petition.
5. Learned counsel for the petitioners would try to rely upon the judgment rendered in the matter of Food Corporation of India, Tadepalligudem –vs- Sri Ramachandra Boiled and Raw Rice Mill and ORs., reported in AIR 1985 Andra Pradesh 23 where under similar circumstances it is held as under:
“Held that the Court should not adopt unduly rigid or over-strict view in construing whether sufficient cause has been established or not. The Court should not also readily accept the submissions made, but has to scrutinize each case on the facts whether sufficient cause has been established or not. In this case, admittedly intimation was given on the last day of the 90th day from the date of death of the deceased defendant. Obviously he wants to avail of the full period of limitation prescribed to see that the application is filed beyond 90 days. It should also be noted that the details of legal representatives have not been given. Admittedly a report was submitted to the petitioner on 15.09.1976 informing the names of the proposed respondent to be the L.Rs. entitled to represent the estate of the deceased proprietor of the first defendant firm. On the next day i.e. on 16.09.1976 an application to that effect has been filed. The Court was satisfied on the facts in this case that the plaintiff has established sufficient cause for not bringing the L.Rs. on record within the prescribed period of limitation. Abatement was, therefore, set aside and the suit was ordered to be proceeded with.”
6. When the fact situation in the present case is appreciated with the judgment referred to supra, it would clearly indicate that the defendants are hell-bent in not cooperating with the plaintiffs in furnishing the particulars though at an initial stage a memo is filed by them. In this background, the conduct of the parties will have to be looked in to in the present case.
7. In fact, in this proceedings though notice is duly served on all the respondents, who are the defendants in the court below they have deliberately stayed away from this Court thereby clearly indicating that their intention is to prevent the attempt of the plaintiffs who are said to have paid money for purchase of the property from defendants 1 to 8 in the court below in securing a decree as prayed for by them in the suit. Therefore, when the transaction is looked in to, it is seen that the property of the family of defendants is offered to the plaintiffs under the agreement of sale dated 23.8.1997 which is followed by supplementary agreement dated 16.7.2002 thereby indicating that the suit property is offered to be sold by them as legal heirs of original owners of property which belonged to the father of defendants 1 to 5, namely Vincent Barnes. In the event, if James Vincent Barnes – 4th defendant has died without surviving him his wife and/or children, then what is to be construed is the other children of Vincent Barnes would be the legal heirs of deceased 4th defendant.
8. With such observations, it is held that rejection of the application of the plaintiffs in IA.9 by the court below is erroneous and the same does not stand to reason.
Therefore, by setting aside the order dated 15.6.2013 passed on IA.9 in OS.No.137/2006 on the file of Principal Civil Judge (Sr.Dn), Udupi, this Court would order for proceeding with the suit filed by the plaintiffs against defendants 1 to 3 and 5 who are surviving children of Vincent Barness as the legal heirs of deceased 4th defendant in the event he is not survived by either his wife or children.
Accordingly, this writ petition is allowed.
Sd/- JUDGE nd/-