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2021 Supreme(Kar) 217
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
B. M. Shyam Prasad, J.
M. Raviprakash S/O Late C. Malleshappa and ors. - Petitioners
Versus
Ansar Ahamad, S/O Yadagar Sab And Ors. - Respondents
Civil Revision Petition No. 316 of 2016
Decided On : 05-01-2021
Advocate Appeared:
For the Petitioner:Sri.S.V. Prakash., Advocate
For the Respondent:Sri.P.N. Harish., Advocate
Headnote:
Code of Civil Procedure, 1908 - Order XLIII Rule 9,3 and 1(k) -Property - Permanent injunction in respect of immovable property - One filed the suit in O.S. for permanent injunction in respect of immovable property - Civil Court partially decreed suit by its judgment and decree restraining respondent from interfering with said one possession of subject property including a common passage - Said one carried this judgment in appeal in R.A. because the decree did not extend to a passage identified separately in a rough sketch as ‘ABCD’ – Said one was unsuccessful in this first appeal as appeal was dismissed by judgment - As such he carried the judgments of civil Court and first appellate court in second appeal before this Court in RSA – Held, though learned counsel for respondent argues vehemently that present applications have been field by petitioners’ after a lapse of 12 months from date of demise of said one and the delay has not been sufficiently explained, it is seen that in affidavit accompanying applications petitioners have specifically asserted that after demise of said one they had to shift their residence - When they were searching for records, they chanced upon records pertaining to the civil suit, and until then they were not aware of the suit - Respondent has not placed any material on record to seriously controvert this assertion, and this Court is not persuaded to conclude that petitioners are relying upon these circumstances unjustifiably - Revision petition is allowed.
ORDER :
This petition is filed impugning the order dated 02.06.2016 in M.A.No.68/2013 on the file of the I Additional Senior Civil Judge and CJM, Shivamogga (for short ‘the appellant Court’) and the order dated 7.8.2013 on I.A.XIII to XV in OS No.459/2000 on the file of the Principal Civil Judge and JMFC, Shivamogga (for short ‘the Civil Court’).
2. The Civil Court, which had disposed of the suit in O.S.No.459/2000 as having abated by order dated 31.1.2012, has rejected the petitioners’ applications [I.A.XIII to XV] for condonation of delay in filing the application for setting aside abatement, for setting aside of the abatement and to come on record as the legal representatives by the impugned order dated 07.08.2013. The petitioners, who are the sons of the original plaintiff, Sri C.Malleshappa, have filed the appeal in M.A.No.68/2013 impugning the order dated 07.08.2013, and the appellate Court has dismissed this appeal by the other impugned order dated 02.06.2016. As such, the petitioners have preferred this petition.
3. Sri C.Malleshappa filed the suit in O.S.No.459/2000 for permanent injunction in respect of the immovable property measuring 1 acre 3 guntas in Sy.No.64/2 of Millaghatta, Kasaba Hobli, Shivamogga Taluk (described as being within the limits of Shimoga City as of the date of the suit). The civil Court partially decreed the suit by its judgment and decree dated 7.12.2005 restraining the respondent from interfering with Sri C.Malleshappa’s possession of the subject property including a common passage measuring 4 [four] feet wide. Sri C.Malleshappa carried this judgment in appeal in R.A.15/2006 because the decree did not extend to a passage identified separately in a rough sketch as ‘ABCD’. Sri C.Malleshappa was unsuccessful in this first appeal as the appeal was dismissed by judgment dated 27.2.2007. As such he carried the judgments of the civil Court and the first appellate court in second appeal before this Court in RSA No.2181/2007. This Court by order dated 13.1.2011 restored the suit in O.S.No.459/2000 for expedited decision with a direction to the civil Court to appoint a Commissioner for purposes of local inspection and to obtain a report with appropriate subsequent opportunities to both Sri C.Malleshappa and the respondent.
4. After this remand, Sri C Malleshappa has filed I.A.XII for appointment of a Commissioner to conduct local inspection, and the civil Court has allowed the application. The Court Commissioner has filed his report dated 19.8.2011. Sri Malleshappa has died on 10.11.2011, and because his legal representatives did not come on record within the stipulated time, the suit is closed without decision on merits observing that the suit would abate.
5. On 22.11.2012, the petitioners have filed three separate applications viz., I.A.XIII to XV for condonation of delay, setting aside of abatement and leave to come on record as the legal representatives of the deceased plaintiff. The civil Court, by its impugned order, has rejected these applications observing that Sri C Malleshappa has died leaving behind the petitioners and three daughters who were not made parties to the proceedings and that on the demise of Sri C Malleshappa cause of action would not survive in the petitioners. If the petitioners could urge and establish a new cause of action, they could always file a separate suit.
6. The petitioners being aggrieved by this order have filed appeal under Order XLIII Rule 1(k) of the Code of Civil Procedure, 1908 (For short ‘CPC’) in M.A.68/2013. The appellate Court by its order dated 02.06.2016 has dismissed the appeal inter alia on the ground that the petitioners cannot succeed in their applications unless they seek restoration of the suit which is disposed of as having abated, and because the petitioners have filed their applications without application for restoration under Order XXII Rule 3 of the CPC, the appeal would not be maintainable. The appellate Court has also observed that because the oth
